Are smaller voices going unheard in software patent discourse?

February 8, 2013

Little guy doesn't get heardDo software programs represent true and genuine innovation that ought to be patented, or are they merely expressions of the kind of idea that wouldn’t normally qualify for patent protection?

That is the issue that a U.S. Court of Appeals for the Federal Circuit in Washington, D.C. is set to consider this week. Some argue that software is the instrument that enables businesses to achieve certain goals (think one-click shopping, or websites that “remember you,”) and is properly patentable. Others say they are simply means to the sort of end that all companies want, and so should not qualify for patent protection any more than policies or procedures for doing business would.

The software/patent dilemma is a question that has some of the biggest companies in the U.S. coming up with — and vigorously defending — opposing answers.

IBM, for example, has expressed its view that patent rules that are too tight would tamp down on innovation. In basements across the country, web developers and programmers nodded their agreement.

Google and Facebook, however, have been among those companies that have said that existing patent rules and policies are too loose, which robs them of economic incentive to create new and useful programs. If you can’t stop people from ripping off your useful and valuable material, then why bother inventing it in the first place?

Companies like IBM, Facebook, Apple and Amazon are among the most-quoted any time a journalist cranks out a piece on the difficulty of syncing our venerable patent regime to new technologies. Those companies are a huge source of technology patent applications, of course, but they are not the only ones who ever try to patent software.

Software programs accounted for the fastest-growing sector of patent applications between 1980 and 2005, according to the Brookings Institution. I wonder how many of those patent applications were from smaller companies or individuals. Apple was famously founded in a garage, you will remember, and Dell and Facebook were established in dorm rooms.

Because they are so spread out and not as easy to contact, I feel like smaller companies and individual tech wizards do not have their views on the patent-technology issue well-represented in media coverage of the issue. And since I don’t know of any myself, I’m pretty much in the dark as to what their thoughts are.

If you have any insight, either because you’re a smaller technology business owner, a solo developer or because you know people who fall into either category, let me know what you think in the comments.