February 14, 2013 | By Julie Samuels

Talking Software Patents with the Patent Office: A Sign of Reform to Come?

There is much wrong with software patents. But one of their worst side effects has to be the advent of the patent troll: one who makes nothing, sells nothing, and capitalizes on legal loopholes to extort money in the guise of “licenses,” oftentimes from parties who don’t even arguably infringe the patent at issue. Lately, patent trolls have behaving even worse than usual, targeting downstream users, consumers, and others who lack the resources to fight back.

So it’s no wonder that people are starting to pay attention: first, the Federal Circuit agreed to rehear a case on the scope of what is and what isn’t patentable. Second, Representatives DeFazio and Chaffetz introduced the SHIELD Act, proposed legislation that would make the patent troll business model less attractive. And these come on top of promising self-help remedies, such as Twitter’s Innovator’s Patent Agreement and the Defensive Patent License, that third parties are taking upon themselves.

Now the Patent Office is joining the crowd, holding two roundtables to talk about some of the worst problems with software patents. The first occurred this week at Stanford University, where representatives from the Patent Office, professors, lawyers, engineers, and members of the community got together to discuss the one of the worst problems that software patents pose, something called functional claiming.

It’s not a coincidence that the patent trolls use software patents as their weapon of choice. Indeed, one of the reasons those patents are the most dangerous is that they are so vague and so broad. Many patents lay claim to all possible approaches to a problem, instead of the specific solution proposed by the inventor. This is known as functional claiming and is endemic to software. For instance, it’s as if in another field, someone tried to claim any arrangement of molecules in a pill to cure headaches without specifying the particular drug that accomplished that goal. The resulting dangers are obvious.

This functional claiming problem can be fixed by requiring patent applicants to claim their particular solutions, whether the particular drug that cures a headache or the specific algorithms, or even code, that accomplishes a task. And that’s just what we recommended to the Patent Office yesterday: that patent applicants should have to submit working code with their applications, or at least detailed, line-by-line notations explaining how their code works in order to get a patent. And if they do get a patent, they should be limited to the invention they claimed.

We think software patents are bad news, and incredibly harmful to our society and economy. We wish we didn’t have to deal with them at all. But by fixing the functional claiming problem, and limiting patentees to a narrow invention that they actually came up with, we would also limit the amount of harm those patents could cause. The Patent Office does not (yet) have the power to get rid of software patents entirely, but it can fix the functional claiming problem. We’re pleased to see its interest and hope that it choses the right path by closing the functional claiming loophole. 


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