What if, in a future case where a large corporation is defending itself from software patents, it simply asked the court to apply the same logic to those patents? Lemley suggest this means:
... not simply "a computer" but "a computer programmed in a particular way." Specifically, as recent Federal Circuit indefiniteness cases have shown, patentees will have to disclose the algorithms they use to achieve particular ends, and the patent will be limited to those algorithms and equivalents thereof.
If this argument succeeded and, of course, survived the appeals process, a precedent would be set that a patent using the devious practice of treating a general-purpose computer as if it were a specific device would no longer stand. All existing patents would be affected; Congress would not need to intervene; the software industry could spend that half-trillion dollars on innovation instead of litigation; and most important to me at least, the open source community could rest easy and get back to creating free software.
I encourage you to read Lemley's paper in full -- it is well-written and highly readable. On the way to his conclusion, he eloquently describes why the software patent system is so broken, the damage it's doing to the economy, and the different proposals to deal with it. While many would would prefer if the entire patent system were swept away, Lemley is in favor of a limited ability to patent software -- to mend, rather than end, the system.
Legal experts have been calling for such a solution for some time. According to Andrew Updegrove, a leading lawyer specializing in technology issues and standards:
One of the things that's often forgotten is that part of the original rationale for granting monopoly rights to first inventors was that, in exchange, those inventors would disclose their inventions in order to share them with the world. The problem today isn't disclosure anymore (instead, it's granting patents that shouldn't issue, and enforcement of valid patents against innocent, independent inventors). That said, anything that narrows patents and prevents them from being asserted beyond reasonable parameters would be a help. What we need now is a case that presents an appropriate opportunity for Professor Lemley's argument to be presented, and a judge that is willing to accept it.
Could Lemley's proposal possibly work? Who knows? The law and the courts don't readily surrender to mere logic. The comments on an article about the paper in the law section of OpenSource.Com suggest other legal professionals have questions about the proposal. To determine the real value of Lemley's proposal, we needs a future defendant in a patent suit to be bold enough to give it a try. However, many of those defendants may be making too much money from software patents themselves to want to upset the system.
But if it is indeed feasible, it's an elegantly simple solution to a problem that's kept open source developers awake all day and affected their programming at night. I hope someone makes the attempt.
This article, "The software patent solution has been right here all along," was originally published at InfoWorld.com. Read more of the Open Sources blog and follow the latest developments in open source at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.