San Jose Mercury News
"Software patent trolls can be stopped by U.S. Patent Office and Congress"
February 11, 2013
Few topics leave app developers and startups as frustrated as software patents. Gather app developers and publishers, and within minutes one will ask, "Have you received a patent infringement letter yet?" Then they tell varying versions of the same story.
An app gains a little notoriety or market share, and soon after receives a letter from a patent holding company (aka "troll") claiming that the app is infringing the troll's patent and requesting payment of a licensing fee. The letter identifies the patent, but it covers extraordinarily broad technology that could relate to virtually any app, website, or software.
When the app developer calls the troll for more details about the alleged infringement, the answer is chilling: that information will only be shared in the litigation discovery process. The developer's choices are to either pay the troll or hire lawyers and prepare for a financially devastating, time-consuming and distracting legal battle.
It sounds like extortion. But that is how our patent system works.
While app developers are angry with the trolls, they are also frustrated, rightly, with their government. The patent system was created to promote innovation and protect entrepreneurs. But in the trenches of the app development industry, people are intimidated and angered. App developers and entrepreneurs, the very people whom the patent system should protect, now consider software patents as inhibiting -- rather than promoting -- innovation.
Most developers try to stay under trolls' radar, but that is impossible after even modest success. Some developers are fighting back. For example, one entrepreneur with a wife, three kids and 25 employees could have paid a $2,000 royalty. Instead he has chosen to pay $30,000 to lawyers. That shouldn't be necessary.
The best solution would be for Congress to fix the patent system so trolls cannot abuse and intimidate startups. But legislation takes time. In the interim the Patent Office can help by improving patent application processes to reduce the number of poor-quality patents that are easily deployed as litigation machetes by very smart lawyers.
First, the Patent Office should require software patent applications to be written in plain language, so they can be easily understood by coders and reasonably smart people. The public has the right to know precisely what is patented, so they know clearly what will be infringing. Patent examiners should be trained to reject applications that do not clearly describe the invention and precisely set out the limits of patent claims.
Additionally, the patent application must describe the invention with enough detail that a reader could actually make and use it. Without sufficient detail, neither an examiner nor the public can be sure that there is really an invention being patented, or whether it is only an unpatentable idea. We don't patent ideas because that would leave no opportunity for next-generation innovators. Imagine if Edison's patent covered the idea of converting electricity into light instead of the specific method. In that case no one would ever have invented new forms of light bulbs.
For two centuries, the patent bargain has been understood: America will grant inventors a limited monopoly in return for public disclosure of the invention. Clear and precise patent applications are critical underpinnings of America's patent trust.
App developers, our nation's newest generation of business builders, distrust the patent system that was largely created for their benefit. It's time for Congress and the Patent Office to fix the patent system, so that it protects those who actually innovate -- not the trolls that prey off their success.
Jon Potter is the president of the Application Developers Alliance, representing more than 20,000 individual developers and more than 100 companies. He wrote this for this newspaper.