from the make-them-live-under-a-bridge dept.
Timothy B. Lee writes at Vox that the PATENT Act is focused on dealing with patent trolls: fly-by-night companies that get rich by exploiting flaws in the way the courts handle patent lawsuits. If trolls are the primary problem with the patent system, then the PATENT Act will go a long way toward fixing it. But according to Lee patent trolls aren't the primary problem with the patent system. They're just the problem Congress is willing to fix. The primary problem is the patent system makes it too easy to get broad, vague patents, and the litigation process is tilted too far toward plaintiffs. But because so many big companies make so much money off of this system, few in Congress are willing to consider broader reforms.
A modern example is Microsoft, which has more than 40,000 patents and reportedly earns billions of dollars per year in patent licensing revenues from companies selling Android phones. That's not because Google was caught copying Microsoft's Windows Phone software (which has never been very popular with consumers). Rather, it's because low standards for patents — especially in software — have allowed Microsoft to amass a huge number of patents on routine characteristics of mobile operating systems. Microsoft's patent arsenal has become so huge that it's effectively impossible to create a mobile operating system without infringing some of them. And so Microsoft can demand that smaller, more innovative companies pay them off.
But according to Lee there is hope that the courts may help. The most important decision might have been last year's Alice v. CLS Bank ruling, which addressed the patentability of software for the first time. Lower courts are still working out the exact implications of that decision, but the ruling led to the destruction of a dozen software patents within three months. It's likely to destroy hundreds more in the future. "Over the last decade, the high court has handed down a series of opinions that have very slowly corrected the law's pro-patent tilt," writes Lee. "The pro-patent laws that produced today's patent litigation crisis were developed by the courts over a 25-year period, from about 1980 to 2005. Since 2005, the Supreme Court has been working to restore balance to the patent system, but it could take another decade or more for them to complete their work."