Patent Scope And Innovation In The Software Industry
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Patent Scope And Innovation In The Software Industry
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Author : Mark A. Lemley
language : en
Publisher:
Release Date : 2012
Patent Scope And Innovation In The Software Industry written by Mark A. Lemley and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2012 with categories.
Software patents have received a great deal of attention in the academic literature. Unfortunately, most of that attention has been devoted to the problem of whether software is or should be patentable subject matter. With roughly 40,000 software patents already issued, and the Federal Circuit endorsing patentability without qualification, those questions are for the history books. The more pressing questions now concern the scope to be accorded software patents. In this paper, we examine the implications of some traditional patent law doctrines for innovation in the software industry. We argue that patent law needs some refinement if it is to promote rather than impede the growth of this new market, which is characterized by rapid sequential innovation, reuse and re-combination of components, and strong network effects that privilege interoperable components and products. In particular, we argue for two sorts of new rules in software patent cases. First, we advocate a limited right to reverse engineer patented computer programs in order to gain access to and study those programs and to duplicate their unprotected elements. Such a right is firmly established in copyright law, and seems unexceptional as a policy matter even in patent law. But because patent law contains no fair use or reverse engineering exemption, patentees could use the grant of rights on a single component of a complex program to prevent any "making" or "using" of the program as a whole, including those temporary uses needed in reverse engineering. While patent law does contain doctrines of "experimental use" and "exhaustion," it is not at all clear that those doctrines will protect legitimate reverse engineering efforts. We suggest that if these doctrines cannot be read broadly enough to establish such a right, Congress should create a limited right to reverse engineer software containing patented components for research purposes. Second, we argue that in light of the special nature of innovation within the software industry, courts should apply the doctrine of equivalents narrowly in infringement cases. The doctrine of equivalents allows a finding of infringement even when the accused product does not literally satisfy each element of the patent, if there is substantial equivalence as to each element. The test of equivalence is the known interchangeability of claimed and accused elements at the time of (alleged) infringement. A number of factors unique to software and the software industry - a culture of reuse and incremental improvement, a lack of reliance on systems of formal documentation used in other technical fields, the short effective life of software innovations, and the inherent plasticity of code - severely complicate post hoc assessments of the "known interchangeability" of software elements. A standard for equivalence of code elements that ignores these factors risks stifling legitimate, successful efforts to design around existing software patents. To avoid this danger, courts should construe software claims narrowly, and should refuse a finding of equivalence if the accused element is "interchangeable" with prior art that should have narrowed the original patent, or if the accused improvement is too many generations removed from the original invention.
Designing Optimal Software Patents
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Author : Dan L. Burk
language : en
Publisher:
Release Date : 2020
Designing Optimal Software Patents written by Dan L. Burk and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2020 with categories.
Patents constitute our foremost policy tool for encouraging innovation. However, because each new technology provides an important input to subsequent innovation, the exclusive rights conferred by a patent may also impose significant costs upon follow-on innovators. Optimal patent policy should seek to maximize the patent incentive effect, while minimizing burdens placed on future innovation by tailoring the scope of the patent to the characteristics of each technological sector affected. In the case of software, recent scholarship has illuminated the innovation profile of the current industry. Software is characterized by incremental innovation, relatively low development costs, and short, volatile product life cycles. Interoperability and compatibility between complementary products is a major concern, making technical transparency or reverse engineering critical to product development. This suggests a need for relatively narrow patents that are relatively easy to obtain, and subject to the exceptions necessary to ensure interoperation and follow-on development.However, current software patent doctrine bears little relationship to this industrial profile. The United States Court of Appeals for the Federal Circuit has set an extremely lax standard of disclosure software patents, resulting in patents scope unconstrained by doctrines of enablement and written description. Recent changes that make patent law amenable to software have produced a flood of new applications, allowing firms to adopt a patent thicket strategy for licensing leverage. At the same time, Federal Circuit case law suggests that a stringent standard for patent non-obviousness will be applied to such patents, resulting in relatively few valid software patents. Optimal software patent doctrine would constrain scope to deal with patent thicket while lowering the non-obviousness standard to validate more issued software patents.
The Patent Crisis And How The Courts Can Solve It
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Author : Dan L. Burk
language : en
Publisher: ReadHowYouWant.com
Release Date : 2010-10-19
The Patent Crisis And How The Courts Can Solve It written by Dan L. Burk and has been published by ReadHowYouWant.com this book supported file pdf, txt, epub, kindle and other format this book has been release on 2010-10-19 with Business & Economics categories.
Patent law is crucial to encourage technological innovation. But as the patent system currently stands, diverse industries from pharmaceuticals to software to semiconductors are all governed by the same rules even though they innovate very differently. The result is a crisis in the patent system, where patents calibrated to the needs of prescrip...
Software Patents
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Author : Knut Blind
language : en
Publisher: Edward Elgar Publishing
Release Date : 2005-01-01
Software Patents written by Knut Blind and has been published by Edward Elgar Publishing this book supported file pdf, txt, epub, kindle and other format this book has been release on 2005-01-01 with Business & Economics categories.
There has been continued debate in Europe over whether to change the patentability of software - or so-called computer-implemented inventions - and to follow the US model of allowing software patents. The European debate has shown a severe lack of empirical analysis on the possible impact of software patenting that goes beyond interest-driven rhetoric. This book seeks to address this shortcoming by taking a two-fold approach. Firstly, a survey of German software companies provides a representative overview of both general strategies to protect inventions and opinions regarding the future IPR regime in the context of innovation strategies - including the importance and use of Open Source software. Secondly, a series of case studies illustrate the varying impacts that patents and other protection strategies can have in specific contexts. This book provides both a theoretical overview of the economic impacts and policy implications of software patents, and an empirical foundation upon which to base a discussion on how to shape the intellectual property regime for software.
Software Innovations And Patents
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Author : Norman Hoppen
language : en
Publisher: Ibidem-Verlag Haunschild/Schoen gbr
Release Date : 2005-01-01
Software Innovations And Patents written by Norman Hoppen and has been published by Ibidem-Verlag Haunschild/Schoen gbr this book supported file pdf, txt, epub, kindle and other format this book has been release on 2005-01-01 with Law categories.
In 1996, the Russian Federation became a member of the Council of Europe. Two years later, the Russian parliament ratified the Council's major document-the European Convention on Human Rights (ECHR). These papers were presented at a conference at Yekaterinburg in spring 2001. The collection represents a snapshot of Russian and Western approaches to human rights protection at a moment when Russia was going through a first phase of adaptation of the political system created by Boris Yeltsin to the new modes of state-society relations being introduced by Vladimir Putin.
Inventing Software
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Author : Kenneth Nichols
language : en
Publisher: Bloomsbury Publishing USA
Release Date : 1998-04-16
Inventing Software written by Kenneth Nichols and has been published by Bloomsbury Publishing USA this book supported file pdf, txt, epub, kindle and other format this book has been release on 1998-04-16 with Computers categories.
Since the introduction of personal computers, software has emerged as a driving force in the global economy and a major industry in its own right. During this time, the U.S. government has reversed its prior policy against software patents and is now issuing thousands of such patents each year, provoking heated controversy among programmers, lawyers, scholars, and software companies. This book is the first to step outside of the highly-polarized debate and examine the current state of the law, its suitability to the realities of software development, and its implications for day-to-day software development. Written by a former lawyer and working software developer, Inventing Software provides a comprehensive overview of software patents, from the lofty perspectives of legal history and computing theory to the technical details and issues of actual patents. People interested in the legal aspect of software patents will find detailed technical analysis of actual patented software, the legal strategies behind the wording of the patents, and an analysis of the ease or difficulty of detecting infringements. Software developers will find ways to integrate patent planning into their standard software engineering practices, and a practical guide for studying and appraising their competitors' patents and safeguarding the value of their own. Intended primarily for programmers and software industry executives and managers, Inventing Software will also be useful, illuminating reading for attorneys and software company investors.
Innovation And Its Discontents
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Author : Adam B. Jaffe
language : en
Publisher: Princeton University Press
Release Date : 2011-05-27
Innovation And Its Discontents written by Adam B. Jaffe and has been published by Princeton University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2011-05-27 with Business & Economics categories.
The United States patent system has become sand rather than lubricant in the wheels of American progress. Such is the premise behind this provocative and timely book by two of the nation's leading experts on patents and economic innovation. Innovation and Its Discontents tells the story of how recent changes in patenting--an institutional process that was created to nurture innovation--have wreaked havoc on innovators, businesses, and economic productivity. Jaffe and Lerner, who have spent the past two decades studying the patent system, show how legal changes initiated in the 1980s converted the system from a stimulator of innovation to a creator of litigation and uncertainty that threatens the innovation process itself. In one telling vignette, Jaffe and Lerner cite a patent litigation campaign brought by a a semi-conductor chip designer that claims control of an entire category of computer memory chips. The firm's claims are based on a modest 15-year old invention, whose scope and influenced were broadened by secretly manipulating an industry-wide cooperative standard-setting body. Such cases are largely the result of two changes in the patent climate, Jaffe and Lerner contend. First, new laws have made it easier for businesses and inventors to secure patents on products of all kinds, and second, the laws have tilted the table to favor patent holders, no matter how tenuous their claims. After analyzing the economic incentives created by the current policies, Jaffe and Lerner suggest a three-pronged solution for restoring the patent system: create incentives to motivate parties who have information about the novelty of a patent; provide multiple levels of patent review; and replace juries with judges and special masters to preside over certain aspects of infringement cases. Well-argued and engagingly written, Innovation and Its Discontents offers a fresh approach for enhancing both the nation's creativity and its economic growth.
Software Patents Incumbents And Entry
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Author : John R. Allison
language : en
Publisher:
Release Date : 2014
Software Patents Incumbents And Entry written by John R. Allison and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2014 with categories.
Software patents have been controversial since the days when "software" referred to the crude programs that came free with an IBM mainframe. Different perspectives have been presented in judicial, legislative, and administrative fora over the years, and the press has paid as much attention to this issue as it has to any other intellectual property topic during this time. Meanwhile, a software industry developed and has grown to a remarkable size, whether measured by revenues or profitability, number of firms or employees, or research expenditures. The scope of software innovation has become even broader, as an increasing number of devices incorporate information technology, requiring modern manufacturing firms outside the software industry to employ developers and programmers to ensure that increasingly diverse functions are performed more efficiently. Although inventors have consistently asserted their need for patents in order to compete with industry incumbents, patent protection has not been easily or consistently available for much of this period. Rather, the legal system has responded gradually to the burgeoning software industry by broadening the scope and strength of protection for software-related inventions in fits and starts. The explosive growth of the industry is largely attributable to demand generated by the efficiency of software solutions; the expansion of the venture capital industry over the same period largely explains the lack of industry concentration. The "garage" mentality can be explained by the fact that even some of the largest industry incumbents began with one or two (largely unfunded) inventors. Also, there is every reason to believe that increased patent protection has contributed to the ability of independent inventors and smaller firms to compete. Moreover, the ability to obtain patents on software always has been important to some of the industry incumbents, while others have exhibited little need for patents and, displayed in some cases, strenuous opposition to the patentability of software. The incumbents are a diverse group. Some produce only software; others have substantial hardware product lines. Some sell to other technology firms and others sell applications to end users in a broad range of markets. And some sell prepackaged software products, while others focus on services - custom programming, installation, or maintenance. Regardless of the sector in which they participate, the incumbents spend massive amounts on research and development (R&D) - about 14% of their annual revenues, more than $60,000 per employee. However, there are important patterns in patenting practices that raw data on R&D investments cannot explain.
Computer Software Intellectual Property
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Author : United States. Congress. Office of Technology Assessment
language : en
Publisher: DIANE Publishing
Release Date : 1990
Computer Software Intellectual Property written by United States. Congress. Office of Technology Assessment and has been published by DIANE Publishing this book supported file pdf, txt, epub, kindle and other format this book has been release on 1990 with Computer software categories.
Intellectual Property Rights Innovation And Software Technologies
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Author : Elad Harison
language : en
Publisher: Edward Elgar Publishing
Release Date : 2008-01-01
Intellectual Property Rights Innovation And Software Technologies written by Elad Harison and has been published by Edward Elgar Publishing this book supported file pdf, txt, epub, kindle and other format this book has been release on 2008-01-01 with Business & Economics categories.
This book examines the effects of Intellectual Property Rights (IPRs), namely patents and copyrights, on innovation and technical change in information technologies. It provides new insights on the links between markets, technologies and legislation by applying a variety of empirical and analytical methods. The book also explores the success of the Open Source movement to establish an alternative regime for IPRs by illuminating the rationale behind it and illustrating how Open Source can strategically be used by firms.