* Or by ‘preferred embodiment’ or whatever.

Patent quality, in my view, is the probability a patent will be overturned in court. When I look at a lot of software patents I am struck by their obviousness and lack of novelty. I put this down to resource and skill constraints at the PTO. Again, I respect Johnson’s focus on that issue.

As far as the validity of software patents I have taken the liberty to “Google” some of your comments to others. I appreciate your rational discussion of the topic. And while you and I agree that the patent system will always be prone to problems, the discussion of what constitutes patentable material should be separated from that.

Rather than elaborate on my reasons for why software should be patentable here, I’ll do my best to post these thoughts in a separate blog post. Then you can have at me

Far more interesting to me than anything covered in Johnson’s testimony are the questions you have raised. What exactly is meant by patent quality? Are there really only too many ‘bad’ software patents? More fundamentally: is patent eligibility for software inventions economically justifiable at all? Would we be better off if IBM had failed to preempt the patenting of the FFT?

Personally, I take an opposite position to yours and have a very serious problem indeed with patenting software. In fact it’s the ones often used as exemplars of ‘good’ software patents (DHT, RSA…) which originally motivated me to look for solid theoretical and empirical economic justification for them. (If I’d found some – instead of mostly the opposite! – I’d certainly concede the desirability of including software in patent eligible subject matter, but not that there can ever be no problem with doing so – it is intrinsic to the nature of the patent system that there will be problems).

Let’s try and hold people testifying to Congress to a higher standard!

Personally I have no problem with patenting software. My problem is the number of poor software patents which get granted. Let’s address that issue first – then we’re in a better position to debate the merits of software, business method and design patents.

Thanks for you comments.

So it goes…

“That experts in the chemical, electronic, and other industries testify that their firms could not maintain their research laboratories without patent protection may persuade some, but probably should be discounted as self-serving testimony.” –Fritz Machlup, An Economic Review of the Patent System.