By David Worthington | Thursday, September 3, 2009 at 10:32 pm
Yesterday, Microsoft’s Deputy General Counsel Horacio Gutierrez called for a world authority on patents, and a single judicial body for litigation. The world needs to cycle more resources toward processing backlogged patent applications and to allow corporations to protect their intellectual property, he said.
“By facing the challenges, realizing a vision, overcoming political barriers, and removing procedural obstacles we can build a global patent system that will promote innovation, enrich public knowledge, encourage competition and drive economic growth and employment,” he added. “The time is now–the solutions are in reach,” he wrote.
After reading Gutierrez’s blog, I began to consider how many interests are vying to influence patent reform in the U.S alone. The politics of patents become infinitely more complicated internationally. Stanford law professor Mark Lemley mused that a standard global patent system may be a good idea, but then so is world peace, obviously making light of Guiterrez’s lofty goal.
Don’t look for this to happen in the immediate future, however.
There are a number of reasons why Microsoft’s idea is not much more than a pipedream. Its likely motivation is to use such a system to leapfrog countries and regions that have been frustrating it, said former American Bar Association science and technology law chair Richard Field.
Progress is being made globally on trademarks and copyrights, but there is essentially no agreement on patents, Field said. “Europe has a different view [than the U.S.], and China has a new system that favors Chinese nationals. Who’s to say that U.S. rules on business method patents are not too broad?”
Creating a global system is not simple task. “What organization would be created, and who would run it?” Field asked. “I can’t imagine countries giving up sovereignty.” He proposed that the World Intellectual Property Organization could become involved, but also suggested that the patent system could fall under the jurisdiction of the United Nations system. “It’s not so harmonized from a public perspective around the world to even know where to go.”
Guiterrez suggested that projects such as the Patent Prosecution Highway and the IP5 partnership could help. Beyond that, there is the question of how an international system would be funded and who will be funding it, which he did not answer.
If countries cannot fund their domestic patent systems, “where will money come from to fund a fully staffed, high-tech global system that is secure?” Field asked.
No country is even close to being able to sit down in a room to resolve the issues involved with creating such a system, he added. “Someday it might happened, and it would benefit big companies like Microsoft, but not within the next 5-10 years. [Microsoft] is just throwing it out there.”
The U.S. has recently improved the quality of its recent software patents, and they are now among the most difficult to obtain. However, the system is in flux, and a massive number of questionable patents have already been issued.
Many software patents are poor quality, and only exist due to a loophole in U.S. law. A lot of programming is math, and math cannot be patented – or at least it shouldn’t be. Under U.S. law, a programming algorithm may preexist as a statement of math, but part of it can be patented if it is tied to a process or machine.
Several court cases have increased the rigor that the U.S Patent and Trademark Office applies to software patents, but the case (In re Bilski) that is most significant to closing the loophole is has yet to be settled. U.S. Supreme Court is now taking it on, and if it rules broadly, it could entirely invalidate software patents as a category.
Moreover, the U.S Senate is also debating patent reform. The law could change right after the Supreme Court decides Bilski. I really don’t know what is going to happen.
The uncertainty around patents in the U.S. is just one example. Patents are a complicated issue, and there is unlikely to be any type of international convention or treaty any time in the foreseeable future.