Credit: Reuters/Jason Reed
This week saw a welcome announcement from the White House following up on earlier comments by President Barack Obama during an online video chat back in February where he condemned patent trolls. Based on a report prepared by the President's Council of Economic Advisers, the National Economic Council, and the Office of Science & Technology Policy, the White House is advocating a set of reforms intended to address the scourge of patent trolls -- companies that, in the president's words, "don't actually produce anything themselves," but instead develop a business model "to essentially leverage and hijack somebody else's idea and see if they can extort some money out of them."
Software patents represent a profound imbalance in the Constitutional social contract that justifies the granting of temporary monopolies -- they convey almost no know-how to programmers while chilling the freedom of software developers to innovate. The current patent system grants these temporary monopolies for far too long. They promote greedy and anticompetitive behavior that blocks innovation and impedes the evolution of the 21st century's participative software industry.
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It's unfortunate that U.S. case law has allowed this to happen. It's a disaster that trade missions have forced other countries (such as Australia) to enshrine them into law. The software industry flourished for years without such patents, even in the control-point-oriented economy of the 20th century.
That said, I'm a realist. As long as software patents are allowed to exist, companies risk shareholder actions if they don't deal with them. Thus, most companies of any size are accumulating patent portfolios that probably include software patents. Although the absolutist idealism exhibited by many of us in the free software movement is laudable and provides a visionary goal, the truth is we're far more likely to see modest reform of the patent system than a radical revision, and the elimination of software patents seems very unattainable.
Although there's hope that the appeal in the CLS v. Alice case will eventually result in the Supreme Court undoing the worst of this case law, its extremist mantra has now been passed to foreign governments, with which the United States will eventually need to harmonize. Ultimately, I believe it will be the international echo of America's own trade missions that trigger a full reform of both patent and copyright law.
We need to be ready: We've programmed the international market to come to us with demands that our evolved industry will hate by the time it happens.
As the Electronic Frontier Foundation notes, the reforms the White House proposes are good, but they probably aren't enough. I was especially pleased to see Stanford University professor Mark Lemley's comments about functional claims being taken seriously, as well as the proposal to out the real companies behind trolling and the proposal to protect product users from suits that ought only to target product makers.
Because these goals can all be achieved via presidential executive actions without involving the logjammed Congress, there's real hope we'll see fast action. But the other needed movement, which require legislative participation, are sure to be slower. Still, the proposal to stop use of the U.S. International Trade Commission as a second venue for trolls to attack their victims is especially good.