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Revisionist Patent History

Today’s New York Times carries an op-ed by Timothy Lee that recalls Microsoft’s 1991 position on software patents and compares it to Microsoft’s position today. The piece has a great quote from Bill Gates and his earlier position:

“If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.” Mr. Gates worried that “some large company will patent some obvious thing” and use the patent to “take as much of our profits as they want.”

For me the most interesting part of the op-ed is the observation of how a company will switch its policy position depending on its place in the market. As Mr. Lee notes in 1991 Microsoft had six patents whereas today it has more than 6,000. The question seems to be whether one should accept that a corporation has seen some sort of new light or is simply a making the best argument based on its current state of affairs. To be clear I don’t know that one can fault the company for advancing its position in this manner. It may be that whenever one is in a position of weakness, one will argue that the rules are unfair until one is in a position to take advantage of the rules previously claimed to be unfair. In any event, Mr. Lee suggests that copyright already addresses software protection well enough and as such software patents are a necessary: “In fact, companies, especially those that are focused on innovation, don’t: software is already protected by copyright law, and there’s no reason any industry needs both types of protection.” More on this idea below the fold.

According to Mr. Lee the current patent dispute between Verizon and Vonage illustrates the software patent problem. Verizon has patented “the concept of translating phone numbers into Internet addresses” without which Mr. Lee argues one would find it “virtually impossible to create a consumer-friendly Internet telephone product.” He then suggests that the copyright system would be better suited to address software protection and that the patent system is redundant and/or unnecessary. The question of optimal protection for software is too large to unravel here. Still, it seems to me that copyright with its rather long term and (as Mr. Lee acknowledges) the ease with which one can obtain copyright protection could have as much if not more detrimental effect than the software patents to which he is opposed. I would offer Dan Burk and Mark Lemley’s Designing Optimal Software Patents which argues “Optimal software patent doctrine would constrain scope to deal with patent thicket while lowering the non-obviousness standard to validate more issued software patents” as a place to begin investigating this question but also welcome input about this debate.