There’s a Cold War going on in the technology industry. It’s not a war over products, consumers or markets. Like the real Cold War, it involves occasional destructive flashpoints and a wasteful arms race that acts as a tax on everyone else. It’s the Patent War.By now it’s pretty much obvious that software patents don’t serve a just purpose. That, indeed, they are destructive because of the litigation they create, and basically act as an innovation tax.
Nothing exemplifies this more than the $4.5 billion auction for the Nortel patents, where a consortium of tech companies spent a huge sum of money not to build new products or conquer new markets, but to basically protect themselves from patent litigation. But there are countless patent troll lawsuits every day.
Patent reform legislation increasingly looks impossible to accomplish because of the lobbyist interests at work and because Congress seems increasingly incapable of doing anything worthwhile.
So, what’s the solution?
As Forbes’ Timothy B. Lee writes, salvation might come from the Supreme Court.Here’s why that’s a real possiblity:
The Supreme Court said three times that mathematical algorithms (a.k.a. “software”) are not eligible for patent protection. Unfortunately, the last of these decisions was three decades ago, and it was muddled enough to allow lower courts to gradually make software patents easier to get.
But in principle, those old Supreme Court decisions are still good law, even if lower courts have gotten in the habit of ignoring them. The Supreme Court just needs to say they really meant it.
So there’s strong precedent. But that’s not all. The last big decision by the Supreme Court on patents was a close 5-4 decision and there’s reason to believe Justice Antonin Scalia is “deeply ambivalent” about business method and software patents and could be a swing vote for a decision invalidating those patents.
But it’s by no means a done deal:
[I]nvalidating software patents at this point would be intensely controversial, because it would invalidate hundreds of thousands of patents—worth billions of dollars—at a single stroke. Courts always try to avoid upsetting apple carts. … [T]he Supreme Court won’t take such a dramatic step unless there is a broad consensus that patents are detrimental to software innovation. … [The Supreme Court is] obviously unaware that most computer programmers consider patents an impediment to their work. Only if this fact becomes common knowledge, in the way that everyone knows doctors hate malpractice lawsuits, will we have any hope of the Supreme Court—and specifically Justice Scalia—doing the right thing.
That’s why it’s important to talk more about what seems like a boring, legalistic issue. Software patents are really an innovation tax, and not enough people realise that.