Blog post

Dear Congress – Please Ignore the IT Industry

By Brian Prentice | May 05, 2009 | 12 Comments

The Future of Ownership - IP & IT Industry

Patent reform is critical to the future of our modern, globalized economy. It’s so important that we can’t waste precious time entertaining myopic shilling from self-proclaimed industry spokespeople bent on reallocating the costs of a broken system rather than fixing the system itself.

On that basis, the U.S. Congress – which is currently considering the Patent Reform Act of 2009 – should kindly but firmly request that the IT industry sit down and shut up.

I have been following the software and business method patent debate for over five years and I have come to conclusion that the vast majority of the IT industry can not see past their own narrow commercial self-interest when it comes to patents.

I include in this the segment of the “open source community” (whoever they actually are) which is vehemently anti-patent. What they position as a highly principled “open access benefits society” argument for the elimination of software and business method patents can rightly be seen as a convenience for those advocating an industry realignment towards service-based business models. One can’t help but think that they just don’t want 3rd party ownership issues to interfere with their ability to make money. Noticeably absent from this perspective, though, is a broader debate on whether these arguments are valid without scrapping the patent system as a whole.

Then we have the traditional vendor community which wants to retain the right to patent software and business methods and license these for commercial benefit but want to deny those same rights to organizations and individuals that aren’t like them. Namely those nasty “non-practicing entities” that keep suing them for infringement.

That perspective was again on display in the testimony of Intel’s Chief Patent Counsel, David Simon, in his testimony to House Committee on the Judiciary. Channeling Michelle Lee, Google’s Head of Patents and Patent Strategy, Mr. Simon appears to hold the view that a “true innovator” and a “product manufacturer” are one in the same. This is an attempt to frame the argument in the context of good and bad patent holders – Intel, of course, being a good guy. I personally consider this a little to convenient to be taken seriously.

Patent reform does not need to devolve into the type of industry lobbying that is polluting the legislative process. I point specifically to the testimony of Phillip Johnson, Chief Intellectual Property Counsel for Johnson & Johnson. Clearly Johnson & Johnson has an interest in leaving the patent system largely unchanged and that is reflected in his testimony.

But at the same time Mr. Johnson makes his argument from a broader perspective of the overall role of the patent system and backs his position up with facts and statistics. He even advocates changes that I would think would not necessarily be in the direct interests of his employer – things like post-grant reviews of patents. Importantly he puts strong emphasis, first and foremost, on addressing the financial and efficacy issues facing the USPTO. While I’m not sure I agree with everything he advocates I respect the spirit of compromise infused in his testimony.

Unfortunately the overriding spirit infusing the IT industry’s contribution to the patent reform debate appears to be narrow self-interest. Not to say that there aren’t balanced voices out there – but too often they’re drowned out.

That’s a shame. As an industry we have so much more to offer. We are better positioned than most to comment on the evolving nature of innovation and how that impacts centuries-old assumptions of the patent system. We can and should be more active in helping PTOs grant higher and higher quality patents. As an industry we’ve been at the forefront of driving process efficiency – why aren’t we collectively doing a little pro bono work to help a public agency that has such an impact on the future of our industry?

It’s time for our industry to pick up its game in these types of national policy debates. If not we should rightly expect to be ignored.

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12 Comments

  • Toby Bell says:

    I completely agree. That’s why I am a participating member of the Peer-to-Patent program that opens the patent examination process to public participation for the first time. The goal is to help the USPTO find the information relevant to assessing the claims of pending patent applications using community reviewers to improve the quality of patents.

    Prior to the existence of community-based review, I’ve participated three times in technology patent applications (and have been amazed by how easily they’ve been awarded). Reform is essential. Leverage of the industry and even perhaps Gartner analysts to support such reform is critical.

  • Nice to see that you’re participating in Peer-to-Patent. Please take a look at my other blog “Patent Reform Ideas – Rethinking the Review Process” (https://blogs.gartner.com/brian_prentice/2009/04/09/patent-reform-ideas-rethinking-the-review-process/). I think community-driven review should become part of a modernized patent system.

    I think everyone agrees that the patent system needs reforming. The problem we have is in the definition of “reform.”

    The point I’ve been trying to make is that there are glaring problems that I think everyone agrees need to be fixed. Specifically, improving the quality of patent grants. Unfortunately, the reform debate is getting bogged down in industry/company specific vested interest rather than focusing on the common problems. The IT industry is a big culprit.

  • bishop says:

    I totally agree with your analysis. Software is not patentable in the first place.

    So there is no need to listen to the large software players, because they are driven by their patent department that does not want to get rid of software patents and try to find solutions on the side.

  • PL Hayes says:

    “I have come to conclusion that the vast majority of the IT industry can not see past their own narrow commercial self-interest when it comes to patents.”

    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.

  • Bishop – software is patentable material! Perhaps you meant to say “…should not be patentable material.”

    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.

  • PL Hayes – if you get a chance please take a look at the testimony by Phillip Johnson (the link above will get you there). It’s an example of finding a middle road between a special interest and a social interest.

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

  • PL Hayes says:

    Well it’s a fine example of self-serving testimony serving the interests of the group of companies Johnson represents – as it has every right to be and couldn’t really be otherwise! From an economic and social welfare point of view an invitation to take a middle road is, potentially, an invitation to settle for a false compromise anyway.

    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).

  • PL Hayes – I certainly don’t expect people in a public policy debate to avoid presenting their specific perspective. But what bothers me with Patent Reform is that there’s probably a lot of common ground that competing vested interests have. I am only advocating we address these issues first. Patent reform doesn’t go through Congress every 2-3 years. Let’s fix the glaring problems first as it will be a long time before we get another crack at this.

    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 😉

  • The arguments against software patents have a fundamental flaw. As any electrical engineer knows, solutions to problems implemented in software can also be realized in hardware, i.e., electronic circuits. The main reason for choosing a software solution is the ease in implementing changes, the main reason for choosing a hardware solution is speed of processing. Therefore, a time critical solution is more likely to be implemented in hardware. While a solution that requires the ability to add features easily will be implemented in software. As a result, to be intellectually consistent those people against software patents also have to be against patents for electronic circuits. For more information on patents and innovation see http://www.hallingblog.com.

  • PL Hayes says:

    Your argument is itself flawed, Mr. Halling, Firstly, if the patent claims for some invention are not limited in scope by being specifically directed to hardware*, then they are (probably) “software patent claims” – the choice of implementation thereafter is quite irrelevant and I am indeed against them! Secondly, that obviously does not imply that I am against “patents for electronic circuits”: if your fast encryption circuit is fast because of the particular contribution your invention has made to circuit technology, rather than to information processing, I am not necessarily against it. (Though if it transpired that patent eligibility in that field failed to “promote progress…” and enhance economic and social welfare, I certainly would be!)

    * Or by ‘preferred embodiment’ or whatever.

  • The problem with “public participation” is that it tilts in favour of the big company with $resources. The little guy won’t have the time to examine Microsoft’s 4000-5000 patents a year, but if Microsoft wants, they can dig up all sorts of information on something close enough to a specific small companies 1-5 patents.

  • Small Software Guy – in a democratic system all we have to rely on is public participation. What we need to make sure of is that the voice of those who don’t have big dollars or dedicated lobbyists are also heard. You might want to take a look at http://change-congress.org/