by Tim O'Reilly
April 2000
There is enormous anger in the software industry, especially in leading edge areas like the Internet and e-commerce, about the patent system.
The best solution would be no software patents at all, but that has been considered and rejected several times (1994 hearings, Oracle campaign, etc.)
System could be improved by an aggressive requirement for applicants ( not the PTO) to search for prior art, rather than simply disclosing what they already know. Prior art should receive substantive comment by applicant, not just citation.
Prior art cited by patent applicants should still be subject to reference in an appeal or dispute.
A public opposition period could also uncover prior art.
While prior art repositories are difficult and expensive to create, Internet technologies could make this more feasible than before.
A change in the standard for re-examination from "clear and convincing evidence" to "substantial new question of patentability", and an allowance of further appeals after re-examination and patent revision, would be helpful.
"Business method patents" are especially problematic, since virtually any business method can be transferred to the Internet, often with trivial effort, and treated as an "invention."
These patents represent a huge feeding frenzy not for inventors but for unscrupulous speculators, plus companies needing to file defensive patents. They have become a tax on innovation rather than a spur to it.
A moratorium on granting of business method patents, or offensive use of any already-granted patents related to the Internet, would allow the PTO and industry to understand the scope of the problem and examine solutions.
A change in the term for software patents might also be useful, although experts in the field note that it is possible to move designs into hardware, or not to specify the implementation, in ways that make it difficult to define "software."
The PTO needs more resources to do a good job, as the number of software patent filings explodes.
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