Thursday, July 24, 2008

Time to let go of the brake ...

I've just been reading on Patently-0 about the following PTO (Patent and Trademarks Office) position on software patents which threatens to invalidate many and perhaps most software patents.

The basis of the argument is that process inventions generally are unpatentable unless they “result in a physical transformation of an article” or are “tied to a particular machine”. The counter argument is that these processes are tied to a computer which is a particular machine. Unfortunately for those with this argument, it seems the PTO does not consider a general purpose computer as a particular machine.

Now for patent trolls this could be a nightmare. For innovation in a society this could create a positive boom. Patents have always been an exchange between information and the right of monopoly, with the overall goal of boosting the rate of innovation in a society. The major issue with patents has been when the length of term of the monopoly has exceeded the likely time of independent discovery in society. In such circumstances patents act as a brake on the rate of innovation and not an accelerator to it.

Ideally, the length of term of a patent should be set to just slightly more than the likely time of independent discovery. This would result in a more equitable but complex system. The current system of one size fits all creates some gross distortions.

The most obvious example of this is in the software industry, where the rate of innovation and independent discovery vastly exceeds the length of term of patents. Ditching the patent system in software is more likely than not to boost the rate of innovation and it is more in keeping with the original goals of the patent system.