There are hundreds of IP lawyers with strong technical backgrounds who could tell the difference between the patent in your example and say the OFDM patent [snip]
Okay, let's take that argument and run with it. If there are so very many talented IP lawyers with strong technical backgrounds, then why is patent law so bad in the first place? Why are we even having this discussion?
I think there are two reasons. First, I don't think there are enough good IP lawyers covering software patents and software patent law. Why? Software is a very new field and it is changing very quickly. Even the foundational structures of our industry are less than a century old. As such, it's very easy to sneak through "obvious" patents simply because they don't look obvious to someone outside the field. Second, the patent attorneys who do understand how software works and how software patents can be used to constrain and thwart software development all seem to be employed by patent trolls.
Fortunately, in this case, the patent was overturned. But not before it did its damage. Before Kelora took on the big companies, it managed to win settlements from a number of smaller firms [2]. That highlights the true cost of software patents. The cost isn't mainly from the patents that are contested in court. The cost is mainly from the patents that aren't. It's the cost of a business that has to shut down because it violates a patent it didn't know existed. It's the cost of man years wasted because a product has to be redesigned to avoid patent litigation.
Yes, patents do protect innovation. However, they protect certain innovations at the cost of making other innovations much more difficult. In software, especially, they form a tragedy of the anti-commons, where, in effect, your competition has veto power over your innovation. It is increasingly clear to me that these costs do not justify the limited benefit that patent protection brings for software. That is why software patents should be abolished. They are simply not worth the cost.
Okay, let's take that argument and run with it. If there are so very many talented IP lawyers with strong technical backgrounds, then why is patent law so bad in the first place? Why are we even having this discussion?
I think there are two reasons. First, I don't think there are enough good IP lawyers covering software patents and software patent law. Why? Software is a very new field and it is changing very quickly. Even the foundational structures of our industry are less than a century old. As such, it's very easy to sneak through "obvious" patents simply because they don't look obvious to someone outside the field. Second, the patent attorneys who do understand how software works and how software patents can be used to constrain and thwart software development all seem to be employed by patent trolls.
For example, let's look at the recent Kelora patent case [1]. In this case, Kelora patented "parametric search" (e.g. drill-down search). They then filed suit against basically every online retailer that allowed shoppers to drill down by category. Now, to a programmer or a web developer, the concept for drill-down hierarchical search is obvious, maybe even a bit blasé. But to someone who isn't as well versed in software development, it can definitely look like a new innovation that deserves patent protection.
Fortunately, in this case, the patent was overturned. But not before it did its damage. Before Kelora took on the big companies, it managed to win settlements from a number of smaller firms [2]. That highlights the true cost of software patents. The cost isn't mainly from the patents that are contested in court. The cost is mainly from the patents that aren't. It's the cost of a business that has to shut down because it violates a patent it didn't know existed. It's the cost of man years wasted because a product has to be redesigned to avoid patent litigation.
Yes, patents do protect innovation. However, they protect certain innovations at the cost of making other innovations much more difficult. In software, especially, they form a tragedy of the anti-commons, where, in effect, your competition has veto power over your innovation. It is increasingly clear to me that these costs do not justify the limited benefit that patent protection brings for software. That is why software patents should be abolished. They are simply not worth the cost.
[1] http://docs.justia.com/cases/federal/district-courts/califor...
[2] http://techcrunch.com/2012/05/26/kelora-obvious-software-pat...
[3] http://en.wikipedia.org/wiki/Tragedy_of_the_anti-commons