on October 27th, 2011

The first patent was granted in Florence in 1421; a few years later King Henry VI of England granted the first modern patent for making coloured glass for cathedral windows.  And recently, one of the most sweeping changes to United States Patent Law was signed into law by Barack Obama on September 16th. But there are huge problems with patents – especially software ones, that as an engineering professional you need to be aware of.

A patent has three main requirements: that it is for a novel process or item and it is both useful and non-obvious. There has been wide interpretation about each of these three terms. The main reason for patents has been to promote innovation and to protect genuine inventors. This works by getting the inventor to make full disclosure of his idea; allowing others to see and benefit from it - either by working out a legal way around it or buying a licence to harness the idea. The inventor has 20 years in which to exploit the idea. This has generally worked well for centuries; especially well for pharmaceutical and chip manufacturing companies but has been increasingly jammed up in the software world. Thus prompting some debate about whether patents actually help or retard innovation.

Improvements to US Patent Law
The US patent law has now been changed from ‘first to invent’ to ‘first to file’; thus bringing US Law into line with the rest of the world. Costs have been reduced significantly by allowing inventors to challenge the validity of a patent at the US Patent and Trademark Office (USPTO); rather than in court (where you would incur incurring millions – literally - in legal fees). And new inventors have reduced fees in their applications.

Madness in granting patents – especially software patents
We have all heard of the crazy patents granted over many years. Such as upgrading a computer’s software over the Internet.

Many so-called patent ‘troll’ companies have amassed patent portfolios simply to harass others into paying licence fees or being sued. Software is a particularly easy target for trolls, as each program incorporates thousands of sub-routines which can easily be challenged by the trolls with catch-all patents. Much of the chaos around software patents has been the lack of rigorous assessment by the government patent office as to whether it is both novel and non-obvious. Hence many software patents are at best trivial or tiny variations of long standing practice. These then lock away permission to this idea for 20 years.

Another problem with software patents is that they are probably too long. 20 years for a software-based product is horrendously long.  Software is properly looked after by copyright law which is probably more than adequate protection. It is also relatively easy to spot whether there is any infringement. On a pedantic note – remember that strictly speaking, it is not the software itself that is patentable, but the process or machine of which software is a (key) component.

How does this help you?

  • Well; patents are considerably easier to get through now in the USA – especially for the ‘smaller guys’ – whether you are a sparkie, tech or design engineer
  • Ensure that you are first past the post with a new idea and get it to the patent office quickly
  • You can also use copyright law to protect your intellectual property
  • And remember that patent law still needs some further development to make it more useful to us engineering types

An intriguing commentary about inventing by Charles F. Kettering: An inventor is simply a fellow who doesn't take his education too seriously.

Thanks to the Economist for some interesting reading.

Yours in engineering learning


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