Some software ideas suffer from a unique problem: detectability. When an embodiment of an idea is expressed in a language that is compiled and distributed as executable code, how can that idea be detected? If it cannot be detected, there is no way to know if someone infringes.
There are many ways patents may be used. In some cases, patents merely buttress a resume, an advertising brochure, or a marketing message. These patents sometimes can also deter other competitors from entering the market and act as a deterrent effect.
My personal experience in industry leads me to believe that intellectual property, and patents in particular, are widely misunderstood if they are understood at all.
The engineers tend to know that patents are a great achievement that go on the resume, but cannot articulate which ideas are patentable, especially with regard to what is not obvious and unique. Often, the gifted engineer might think that his elegant solution to a complex problem is ‘obvious’ after he created it, but he does not realize what a breakthrough it truly is.
The business managers, and even some of them assigned to the patent review committees, sometimes do not fully appreciate the business uses for patents. Because they don’t know how to use them, they cannot identify or classify an innovative idea. I witnessed several of my own inventions go down the drain by untrained and uninformed patent reviewers who didn’t know what to make of the ideas.
As part of my practice, I spend a great deal of time educating my clients so that they can make good business decisions and identify and describe the best inventions to protect their business.
Whether a patent is “obvious” is a legal definition, based on the state of the art at the time of the invention.
Remember back when the net was young and e-commerce was in its infancy. Buying something on line was a tedious task, where page after page of questions needed to be answered perfectly before a sale could be finalized. There were repeated concerns about sending credit card numbers over the internet that sent doubts in the minds of buyers, and the complexities at that time were a big impediment to e-commerce in general.
I fail to see how patent litigation stifles innovation, which seems to be a common theme for people who attack the patent system.
Expensive litigation is an expensive drain on the corporations who wage such wars, no doubt, but it underscores the importance of the business reasons for the litigation.
A solid patent can be a significant competitive advantage to a company. It enables one company to protect its market by protecting its invention from copying. A patent is no more a business tool than good customer service, better sales team, efficient manufacturing and distribution, or better product packaging, advertisement, and placement. Each of these business tools is yet another arrow in a CEO’s quiver.