Tim Wu has a Slate article on problems with software patents, inspired by Blackberry's woes. He reviews the trends to patent reform and the option of rolling back the patentability of software in response, and ends up supporting the latter. Put this way, it sounds so simple. But it really isn't. This issue is rapidly becoming the biggest headache on my desk...

---Do we want the legislature to get into the business of designing a somewhat different IP regime for each and every new technology? Based on economics that may be ephemeral anyway? Oh dear.

There is a middle ground; help the Federal Circuit to figure out principles in the case law that allow subtle distinctions in how patent law is applied to avoid problems peculiar to one industry or another. Mark Lemley and Dan Burk have a lovely article on this, "Policy Levers in Patent Law."

--How do we deal with the software/hardware substitution issue? That is, if we have patents for hardware--including hardware that has software instructions written in--what kinds of weird arbitration effects do we get at the edges if hardware is patentable but closely related and substitutable software products are not? Where do we draw *that* line?

--Tim refers to software as "intangible." The value is in the logic, the process that it sets in motion, not in the plastic it is encoded in. Just as the value of a financial instrument is not the paper it is written on. But... oh dear. That does not really give us a hard line between patentables and ought-not-to-be patentables either. It is equally true of a blueprint for a machine design, or of a chemical formula. This is why patents are *intellectual* property--the value is in the idea. It really does not help to distinguish software in this manner.

--Also, finally, note that the trouble of trolls and thickets and such is *not* neatly confined to software, such that we can carve off that portion of the patent world and the problem goes neatly away...

Thus, despite the wisdom of Tim, I will continue to put my money behind more generic efforts at patent reform. But we had better get the ball rolling.

posted by Solveig Singleton @ 2:00 PM | Big Tent, Patents, Software

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