How Do Software Patents Get Enforced?
A topic that appears frequently in tech news is the issue of software patents. As with all patents, software patents offer protection to individuals and companies that develop new innovations. Software also poses unique challenges, however, which leads many in the tech community to question whether patents are the right answer.
The Basics of Patent Enforcement
A patent for software or other types of products essentially gives inventors exclusive rights to make, sell, and use their inventions for a set period of time, generally 20 years. In return, the patent makes the invention public so that others can benefit from the technical advances that are included in it. Other inventors or businesses can ask the inventor for a license to use the patented material in their own products, and the patent holder can require a fee for such use if they so choose.
Enforcement of a patent is up to the patent holder, at least in the initial stage. It’s the responsibility of a patent holder to determine whether someone else’s product infringes on their patent. If so, they can request that the infringer enter a licensing agreement. If the infringing party refuses, the patent holder has the right to file a lawsuit in federal court to enforce the patent.
Going to court is an expensive proposition for patent holders and alleged infringers alike; therefore, many cases of infringement are settled out of court by negotiation between the two parties. If the case does go to court, the court will decide whether or not the patent has been infringed upon. It can then issue an injunction that prevents the infringing party from continuing to use the patented invention, and it can also award damages to the patent holder.
Alternatively, the alleged infringer may make a case that the patent isn’t valid because the invention is not something that should have received a patent in the first place. If the court agrees that the patent is invalid, the lawsuit is dismissed and anyone can use the invention without needing permission.
The Special Case of Software Patents
Ever since the first patents were awarded to software, there have been questions about whether such patents are valid at all, what kinds of software innovations can be legally patented, and whether software patents are more helpful or harmful to software developers. With the proliferation of mobile apps, Web apps, and other online software, the issue is becoming more pressing.
Some of the primary problems with software patents are the number of arguably trivial patents and patents issued for developments that are not truly innovative or are simply obvious to most developers. There are not enough patent application examiners who are experienced enough with software to spot trivial patents and deny awarding them. This means companies receive patents that they can use to stifle competition by denying other companies the ability to use similar developments or by requiring license fees, which some companies can’t afford.
Evidence indicates that software patents actually slow down innovation rather than protecting it. With so many software patents being issued, it’s difficult or impossible for software developers to check thoroughly to make sure they are not infringing on any patents before they release their own software. The potential for having a court action brought against them may cause some developers to avoid working on true innovations, especially developers in small companies that don’t have the resources to take on a court case.
Changes in Patent Enforcement
Laws change more slowly than software, but there are indications the legal system is catching up with the needs and problems of software patents. For example, the Supreme Court took on the issue of software patents in a recent case, Alice Corp. v. CLS Bank International. In its decision, the court made a distinction between true technological innovation and the simple development of new software to automate a business task. Many abstract business ideas can be handled by writing new software, but that type of software doesn’t constitute real innovation and therefore is not patentable.
The issue of software patents is not going to be resolved any time soon. In the meantime, software patents do provide protection for some companies and some true innovations, but there is also a lot of room for abuse in the system. How the system will change to accommodate the special case of software patents remains to be seen.