Singleton on Software Patents

My co-blogger Solveig Singleton has an interesting paper on software patents over at PFF. I found her arguments against abolishing software patents unpersuasive (more on that later, perhaps) but I thought her proposed solutions were eminently sensible. As she argued in her excellent amicus brief, she suggests that the bar for non-obviousness be raised to weed out trivial patents. I also think this is a great idea:

Another set of effective solutions would make the institutions responsible for the incremental development of patent law, the Patent and Trademark Office and the courts, more effective. The best way to do this is indirectly, by introducing an element of competition. More than one federal circuit should become involved in hearing appeals of patent cases; leaving the Federal Circuit alone to do the job means that difficult legal questions do not have the benefit of a contest of equals.

It seems to me that the problems with our patent system are at least partly a tale of regulatory capture. Congress created a special court in the early 1980s to deal with patent law. Understandably, presidents started appointing former patent lawyers to serve on the court. And, not surprisingly, those judges who used to be patent lawyers have taken an increasingly expansive view of where the patent system ought to apply.

Reshuffling the appeals courts so that the various federal circuits once again shared jurisdiction over patent appeals would restore some impartiality to a court that appears to have acted largely as a creature of the patent bar.

Of course, I also think that the courts should refuse to allow patenting of software. But these reforms would solve problems that extend beyond software patents, so these are good ideas whether or not you think software patents should be abolished. The paper is short, sweet, and to the point, so I encourage you to check it out.

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