Tailoring the Patent System to Work for Software and Technology Patents

Abstract

The problems with software patents are old and well-known. However it’s not for a lack of trying that they have persisted. Software and tech companies have been pushing Congress to fix things for years. Each time they do, however, industries that rely crucially on the patent system, like pharma, stop reform efforts in their tracks, saying that making things better for tech companies would make them worse for others.Viewed this way, the problem isn’t software patents. It’s our unitary patent system and seeming inability to tailor it to work well for different industries. This inability, in turn, stems from international law, which requires patents to “be available and patent rights enjoyable without discrimination as to the field of technology. (TRIPS Article 27) While this clause hasn’t attracted much attention, for years it has stymied popular proposals like abolishing software patents or putting a 5-year limit on them. “Because it’s illegal under TRIPS,” is a common refrain heard on Capitol Hill. However, this refrain is wrong. Because even though TRIPS says that patent law isn’t allowed to treat different inventions differently, our patent law does just that, in many ways, including 35 USC 287(c), 35 USC 271(e), 35 USC 271(c). By relying on the 3-step test of Article 30 in TRIPS, and reverse engineering these provisions, the path to industry-specific reform that fix the problems that confront technology patents without disrupting the sound incentives the patent system provides becomes clear. The courts have already done much to tailor protection but they cannot accomplish certain reforms. The possibility of tailored, meaningful legislative reform sends a signal to the courts, innovators, and the market that fixing the patent system, to work better for innovators, companies, and consumers, is a top priority and a question not of can, or will our patent system be improved, but only a matter of how and when.