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The BSA report on Intellectual Property in the 21st Century (Jan. 2005), cited yesterday, is strongly supportive of software patents, but it also makes several recommendations for patent reform (summarized on page 17 of the report) concerning:
Limits on injunctive relief Opportunities for third parties to challenge patents through administrative review Limits on treble damages Adequate resources for patent offices Improvement of the database of prior art, and third party submission of prior art Better international harmonization and expanded work-sharing. Software patents have come in for a good bit of criticism in recent years, but support of the system by the software producers - the people who have their own money and time on the line - carries a lot of weight, especially because all software companies are both producers and users of patents, and thus have strong incentives to get the rules right. (After attending a National Academy of Sciences conference on tech patents a few years ago I commented that the issues were so complex and the companies so uncertain where their true interests lay that they were seriously considering acting on principle.)
For the problems that arise when the incentives are one-sided, see Patrick's post yesterday on Fighting Patent Terrorists.
Analyzing public policy toward this issue is difficult. The patent system is so arcane that only the in-group really knows what goes on. And writing software is a highly complex process, truly known only by its acolytes. So public discussion of software patents by the laity (including me) involves incomprehension doubled, or perhaps squared.
While thinking about the BSA report, I also ran across a couple of posts by Chicago economist Lynn Keisling, here and here. She cites a recent book by Adam Jaffe & Josh Lerner, Innovation and Its Discontents: How Our Broken Patent System is Endangering Innovation and Progress, and What to Do About It.
I have not read it, since I just one-clicked it, but the authors are well-respected.
posted by James DeLong @ 9:24 AM | Software
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