May 15th, 2008
Patent reform dead for 2008
The death of the Patent Reform Act in the Senate spells hard times for open source.
That’s because one of the act’s main aims was to end “forum shopping,” the practice of filing lawsuits in, say, the Eastern District of Texas, which never saw a patent plaintiff it didn’t like.
The act would have also streamlined reviews of patent claims and made some other important reforms. It wasn’t perfect, but it was better than nothing.
Which is, thanks to the pharmaceutical industry, is what we have. Nothing.
Why did the medical industry kill the computing industry’s attempt at patent reform? It has to do with the nature of the industries, and the patent claims they generate.
Most drugs or medical devices are covered by a single patent, with the application submitted only as part of a rigorous government process. Getting FDA approval for a drug or device is a more important event than winning the patent.
In software, patent claims are often broad, and can cover a host of different packages which may be unrelated to the claimed invention. A single piece of software may also be subject to hundreds of patents, as Microsoft claims Linux is.
To me, the most effective form of patent reform was not on the table. That is, eliminate software patentability entirely. Copyright provides plenty of protection, and what you’re patenting, in the end, is math.
Medical companies feared an end to forum shopping and more examination of claims would burden both their efforts to patent inventions and gain redress when patents were violated. So they torpedoed this half-a-loaf solution for technology.
Next time, let’s go for the whole loaf, and leave the medical conflict out of it.
Dana Blankenhorn has been a business journalist for 30 years, a tech freelancer since 1983. See his full profile and disclosure of his industry affiliations.
| 05/15/08
