The biggest issue I have with Patent Reform, including the activists in Europe, is that many of the positions taken by groups are based on a very short time frame, especially when the effects are extremely long-term.
Patent law and the business mechanisms that are affected by patent law change at glacial speeds. The ripples caused by changes to the law span decades and entire careers if not lifetimes. For example, the PCT process is just now becoming well understood and integrated into the business fabric, but it was actually started during the Johnson administration.
Software was commonly but mistakenly believed to be unpatentable during the early days of computers. (Properly drafted claims had always allowed “software” to be patented.) This forced the early software companies to forge ahead without patent protection and to develop common business processes without patents. After the USPTO began to recognize software patents as such, it took a decade or so for part of the business community to understand this change and begin to adapt.
As with all business cycles, part of the industry began to experiment with the new business practice while others prefer the status quo. Today, we see large companies amassing patents and patent holding companies emerge as well. In the case of software, there was and still is a large contingent who wants the status quo of the 1970’s, when software patents were not a common business practice.
At this stage in the game, the software industry is split, with one group understanding and adapting to the law as it changed nearly 20 years ago, and another group protesting the change and trying to revert back to the time of disco and bell bottom jeans.
It is understandable that those who did not adapt to the patentability of software have sour grapes. Maybe they were ignoring the changes or thought they were a passing fad. Now, after the train has passed them by due to their mistake, they protest and complain and try to change the law.
My issue with all the protests and wrangling is that they are made with a very myopic view. Groups are proposing changes based on an extremely short term view, thinking that their current business situation would instantly get better. However, any change in the patent law will probably take 20 years to fully integrate into the courts and become standard business practice.
I know that very long term thinking is almost irrelevant in today’s political culture, but what is ‘best’ for the patent system should not be decided based on the challenges a particular business or groups of businesses face this year, but on building a mechanism for encouraging innovation over the next half century.
In building a system to encourage innovation over the next half century, we cannot be constrained by today’s technology or mindset. For example, don’t choose to oppose software patents just because you like the open source software model and distribution over the internet, because I guarantee that the internet and open source software will morph and change over the next 50 years into areas we cannot imagine. Likewise, don’t choose to support software patents just because today you hold a bunch of patents in a certain area. Your advantage today is only temporary.
Personally, I like the patent system because it allows creativity to be encapsulated into a vehicle for commerce. The process is very low cost, compared to its value, and can be done by almost anyone with a good idea. No other business mechanism enables the small inventor as easily and cheaply as the patent system. In the US, we call this part of The American Dream.
