Many problems with the patent system—from the explosion in patent trolling to the wasteful smartphone wars—can be traced to the flood of software patents issued by the U.S. Patent and Trademark Office (PTO). These patents are often both broad and vague and are the favorite tool of trolls. A recent study concluded that, even under today’s highly permissive standards for patentability, about 50 percent of software patents would be found invalid if challenged in court. When it comes to software patents, review by the PTO seems to do no better than tossing a coin.
Why is the PTO so bad at examining software patents? There are many reasons. For a start, examiners spend barely any time looking for prior art (the pre-existing publications and technology that could invalidate a patent by showing that the invention wasn't new). PTO examiners spend an average of only 18 hours per application and only a fraction of that time is devoted to looking for prior art. And when they do look for prior art, examiners tend to use a limited set of databases of patents and technical journals. But what if the most relevant prior art is somewhere else? Perhaps the best prior art is a website or a repository of open source code. In that case the PTO will almost certainly miss it. The end result is thousands upon thousands of bad software patents.
Last week, together with Public Knowledge and Engine, EFF submitted written comments urging the PTO to do better at finding the most relevant prior art. We recommend that the office work to create searchable databases of existing software programs. We also urge the PTO to see past the kind of deliberate obfuscation that is too common in software patent applications. Applicants should not be able to get patents simply by inventing new words for old things.
Ultimately, while improved patent examination and fewer bad patents would be a good thing, we need fundamental reform to solve the current crisis. We hope this will include the Supreme Court striking down abstract patents, striking down vague patents, and new legislation from Congress that takes on the patent troll business model. We’ll continue to work on multiple fronts to keep innovation safe from bad software patents.