Software patents should only be valid for 7 years

With all that’s going on with Apple and HTC, it may not be a popular opinion these days, but I think software patents are legitimate.

They’re just a little flawed.

The problem, you see, is their length. Seventeen years of monopoly is an eternity in Internet time. Instead, software patents should only be valid for seven years.

This would be the least disruptive change to the system, allowing companies to protect their intellectual property without overly burdening the general public with bogus patents.

Patent trolls would generally disappear, because a loophole in the current patent system allows them to wait for a technology to spread before retro-actively patenting it. If software patents were good for just seven years, these parasites would either have to claim a more recent priority date and face a lot of prior art, or keep their early filing date and be left with obsolete patents.

For instance, the patent on wireless messaging technology used to sue Apple and others was filed in 2005 - well after the invention it describes became common knowledge. However, through the continuation-in-part loophole, it pretends to have the same protection from the law as if it had been invented 10 years prior. By filing late, patent trolls can make sure that their patents cover the hot technology of the day, and later claim that they invented it. And it’s legal.

So why not get rid of software patents completely?

I don’t buy the argument that just because it’s software, it can’t be inventive. A position that aims to eliminate all patents might be more consistent, but I’d point to China, where piracy runs rampant, as an indicator of what would happen. Too many entrepreneurs have seen their design copied by their Chinese manufacturing partners.

While I’d like to reduce the duration of patents for software, I recognize there are some areas that the 15-year limit makes sense. The research investment that goes into making a software patent is small compared to, say, something in the biotech field. It makes sense for drug manufacturers have a monopoly for 15 years, for instance, since that’s how slowly that industry moves.

A more flexible patent system – one that has a range on patent lengths depending on industry – would be a huge improvement and is the most pragmatic approach to solving the patent crisis.

I like the notion that someone can get points for being extra smart once in their life. I don’t, however, like how easy it is to manipulate the current system. You can’t patent something that is obvious to someone who knows the topic well.

Patents are meant for amazing new technologies, for that brilliant idea that elegantly solves a problem people have been having for years (yet no one had solved in that manner previously). That deserves something.