Patents definition, as Wikipedia explains it:
Patents are intended to promote innovation by encouraging the timely disclosure of how to make and use inventions and by protecting investments made to commercialize inventions.
Now lets have a look at some of recent patent related events that stroked software industry:
Many iPhone app developers withdrew their apps from US app stores, in light of receiving patent infringement notices from a firm named Lodsys, which claims to have patent for in-app billing.
Oracle sued Google claiming Android infringes Java technology patents (which Oracle got after acquiring Sun Microsystems) and asking for 2.6 billion dollars as compensation.
Kootol Software Limited, a Mumbai based software firm has sent patent infringement legal notices to 32 companies including Facebook, Twitter, Apple as it has patent over real-time messaging.
Paul Allen’s firm sues 11 firms including Apple, Facebook, Netflix for violating its patents in 3 specific areas: attracting user’s peripheral attention, alerting users for items of current interest & using a browser to navigate through information.
There are few things that are clear from above examples.
Firstly, current patent system puts the small / medium sized developers in a vulnerable situation as they don’t have enough financial muscle to fight it out in law courts.
Secondly, as the patents are allowed to be bought / sold in open markets, they are costly and often bought by cash rich big corporations. Hence small / medium size companies are forced to either infringe patents or stay away from developing related products.
Thirdly, there is very little cost to send legal notices, but very huge costs to defend them resulting in emergence of patent trolls.
In order to preserve the openness, innovativeness and low-entry barriers of software industry, more sensitivity and thought should be put in handling of patent system. Some of the steps that I believe can help in improving current system are:
1) Non-Obviousness clause in granting patents mention that invention should be sufficiently inventive in order to be granted a Patent. Hence granting patents to latest drug of a pharmaceutical company where it has spent years and millions of dollars in research makes perfect sense, but granting patents to software ideas that can be thought in a day and implemented in 2 days don’t protects innovation but suppress it. Therefore obvious issues in ‘Non-Obviousness’ clause regarding software patents should be corrected.
2) There should be some kind of control in open sale of patent rights. What happens in many cases is that firm that filed the patents doesn’t properly implement the idea (ex: Nortel Networks) but makes good money by selling those patents to big corporations, who in turn generate huge incomes out of these patents from other innovators instead of applying innovation themselves (Eg: Microsoft getting 5$ for sale of each phone by HTC).
3) When some company sues another company for patent infringement and loses the case, it should be analyzed whether it was a case of patent trolling or not, if yes, suing company should be heavily punished for causing wastage of resources & time.
4) Software Industry is pretty fast moving industry with high rate of product releases. Considering that it takes minimum 18 months to evaluate whether company gets the patent or not, it’s unfair for competitive companies which already have released products to suddenly realise that they can be now sued for their released products. Time between patent application and patent grant should be considerably decreased atleast in case of software industry.
In recent years, Software industry has shown tremendous examples of high paced innovation and growth. It’s an industry with great participation from various entities like big companies, independent developers and open-source people. There are very low entry level barriers and healthy competition. We should all wish that patent system is modified in favour to foster such environment rather than destroying it.
Would love to hear reader’s thought on this !