Improving software patent quality to support innovation

Posted by Suzanne Michel, Senior Patent Counsel

We filed comments yesterday with the U.S. Patent and Trademark Office (PTO) on software patent quality, where we argue that better application of established legal principles can help reduce the number of vague, overbroad software patents issued. We think this will protect real innovation while helping to solve some growing problems in the patent system.

Many software patents are so broad as to claim every way of doing something on a computer. And the boundaries of these patents are often unclear. The Patent Office would never permit a patent that covered “any combination of molecules to treat a headache with a pill,” but it regularly does this by allowing software patent claims covering only a goal—not an inventive solution.

By more consistently applying legal rules that require specificity around functional software claims, the PTO can ensure that software patents reward and protect the creative work of building great software products—not just coming up with vague or abstract ideas.

We filed our comments in response to the PTO’s new partnership with the software community and its recent call for public comment on improving patent quality. We commend the PTO’s efforts in this area and look forward to working constructively with the agency in the future.

In our comments, we also suggest that the PTO consider how improved technical training for patent examiners, expanded prior art databases, and standardized terminology used across all software patent applications can help improve quality.

Improving software patent quality is critically important to innovation, which is under attack by patent assertion entities (also known as patent trolls). Trolls don’t make anything; they simply use patents to extract money—almost $30 billion a year—from productive companies through litigation. Trolls often target startups and small businesses that lack the resources or expertise to effectively deal with such lawsuits.

The trolls’ weapons of choice are low-quality software patents: today, most patent litigation is brought by trolls, and about 82% of those suits involve software. There is no single fix to the troll problem, but improving software patent quality will help stem the tide while also supporting real innovation.