"What's going on? It's simply that the US Patent and Trademark
Office (PTO), egged on by a patent-friendly US federal judiciary,
is handing out too many broadly phrased software patents (for
examples, visit http://www.bustpatents.com). Claiming that they
have no reliable way to ascertain the existence of prior art
(previous invention) in software, overworked PTO examiners are
granting tens of thousands of software patents annually--and among
them are patents granting monopoly rights to technologies clearly
invented by others and in widespread, public use."
"What's the danger in this situation? Is it really so bad?
Proponents of strong intellectual property protection argue that a
flawed patent system is better for innovation (and, therefore, for
global competitiveness and social welfare) than no system at all,
but I'm not so sure. In this article, I'll highlight the mounting
evidence--reliable, quantitative evidence backed by rigorous
mathematical models--that the software patent avalanche poses a
major threat to innovativeness (and therefore the competitiveness)
of the US software industry. Other countries, notably those of the
European Union, haven't yet followed the US lead--and they could
find themselves holding a significant competitive advantage if the
US system indeed proves dysfunctional."
"Proponents of strong intellectual property protection believe
that any patent system, even one as flawed as the one that's
dishing out tens of thousands of software patents annually in the
US, is better than none at all. If you reply that the US software
industry developed quite nicely without such protection, they'll
respond that the industry would have done even better if strong
patent protection had been available. Sure, there are grounds
aplenty for arguing that the indiscriminate issuance of broadly
phrased patents is a seriously bad thing; for example, Boston
University law professor Maureen O'Rourke warns of the development
of an anticommons, in which "rights are held by so many different
patentees that the costs for anyone to accumulate all the required
licenses to enable production [are] prohibitive" (O'Rourke
1999). In the absence of rigorously researched evidence, though,
very few people will change their minds."
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