Obama Could Boost Tech via Patent Reform

It's a new year, and America has a new president, which means -- if we're lucky -- we have a new opportunity to tackle the issue of software patent reform.

It's a long shot, I know. But hey, Mr. President -- I realize it's only a few days into your term and all, but if you're not too busy dealing with the wars in Iraq and Afghanistan, renewed conflict in Israel, fluctuating oil prices, and climate change, maybe you would be willing to look into the state of U.S. intellectual property law?

Subsidies for the airline and banking industries will cost billions, but the new administration could reinvigorate the IT industry without spending a dime. Eliminate software patents, and a yoke that has weighed down the technology sector for years will be lifted.

Intellectual Poverty

Software patents affect all developers, commercial vendors, and open source hobbyists alike. Patents restrict what functionality we can include in our applications, how our programs can interoperate, and how and where they can be deployed. In turn, this affects every computer user, by limiting features, raising prices, and slowing the pace of progress.

Patents were designed to encourage innovation by granting inventors limited-term monopoly control over their inventions. In the case of software patents, however, the "inventions" are often little more than concepts, algorithms, or functional processes. Patents on such basic ideas actually stifle innovation by raising roadblocks to progress.

Technically, ideas that are unoriginal or obvious cannot be patented, and yet such filings have regularly been rubberstamped by overworked patent examiners. Amazon.com's notorious "1-Click" patent is the classic example. It's exactly what it sounds like -- a patent on the ability to buy items from an e-commerce site with a single mouse click. Although it was successfully challenged in 2007, Amazon's appeals are ongoing, and the patent has nonetheless stood for a decade.

The Year in Software Patents

In 2008, high-tech companies, including software companies, led the nation in the total number of new patents produced. IBM was at the head of the pack, as it has been for the last 16 years, while Microsoft came in fourth -- and according to the IEEE, Microsoft may have the strongest patent portfolio of all.

Among the "innovations" Microsoft has filed with the patent office in the last 12 months is a novel way of using the PgUp and PgDown keys on your keyboard. Harmless (or humorous) as that example might sound, Microsoft has demonstrated a pattern of belligerence in its use of patents, particularly toward the open source community.

But the current patent law doesn't just affect the little guys. Increasingly, major software vendors have been forced to spend billions to defend against patent claims. Adobe, IBM, Oracle, and SAP were all named in one lawsuit in 2008, while CA, Microsoft, and Symantec are headed for the courts this year. Even Apple, which is widely regarded as one of the most innovative companies around, has been sued. The total cost to the industry of such lawsuits is incalculable.

The worst part is that these lawsuits are often brought by so-called patent trolls or NPEs (non-practicing entities) -- companies whose sole raison d'être is to acquire patents that can be used to siphon funds from legitimate businesses by way of the courts. Such companies are nothing but economic parasites, and U.S. intellectual property law makes them possible.

Lately some companies and consortia have worked to stave off this trend by hoarding patents that they pledge not to assert against anyone. But this amounts to little more than fighting fire with fire.

New Deal 2.0

So while your plate is surely piled high already, Mr. President, for the sake of the economy, the time to raise the issue of software patent reform is now. Backed by broad popular support and a sympathetic Congress, you're in a unique position to encourage this step as a bold stimulus for the technology industry.

Would it be a radical move? Perhaps. But we should remember that Franklin Delano Roosevelt never had a clear-cut plan to help America weather the Great Depression. Rather, he tried lots of things. Some programs provided real relief and became staples of the New Deal. Other, less successful efforts were abandoned.

The current recession calls for the same kind of active, experimental approach. Corporate handouts won't prop up the Nasdaq for long. What we need are genuine reforms that will breathe new life into the U.S. economy; and in the Information Age, where better to begin than the IT industry?

Software patents were a bad idea from the start. They have already been rejected by the European Union, and it's time the United States rejected them, too. Please, Mr. President -- think of your BlackBerry.

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