Software Scan

The President's Column

Peter Huber at the Manhattan Institute argues in the Wall Street Journal that software patents discourage innovation and must be disallowed or restricted. Read why Dr. Huber's facts are wrong and his conclusion is wrong in In the Scanning IP section of this month's newsletter.

In the Scanning Tools section of this month's newsletter I talk about my new book, The Software IP Detective's Handbook, a useful reference for computer scientists, computer programmers, business managers, lawyers, engineering consultants, expert witnesses, and high-tech entrepreneurs.

Send me your comments and critiques. I'm always interested in hearing from you.

Bob Zeidman
President, SAFE Corporation

Scanning IP

Do Patents Really Kill Innovation?

In a recent editorial in the Wall Street Journal entitled Digital Innovators vs. the Patent Trolls, Peter Huber, a senior fellow at the Manhattan Institute, argues that software patents are the shotguns that kill innovation (my analogy) and that non-practicing entities (NPEs derisively referred to as "patent trolls") are pulling the trigger (again, my analogy). I disagree.

Peter Huber makes some contradictory and misleading arguments where he claims that non-practicing entities are ruining innovation in America. On the one hand, he acknowledges that only a small percentage of patents, roughly 2% by his own estimate, end up court. Yet he also believes that "[o]ur patent laws have drifted way off course." He states that "[t]he patent office now grants more than 4,000 patents a week" but neglects to mention that the total number of patent applications and the number of patent rejections have both similarly risen. And one major goal of USPTO director David Kappos, appointed in 2009 by President Obama, is to reduce the backlog of 1.2 million patents around the time he took office. Many more patents are being submitted and examined than ever before-—a sign of the vigorous spirit of innovation in America.

Dr. Huber's logic is equally baffling when he claims that companies rarely sue each other but that companies spend lots of money collecting patents. Why would a company spend so much on worthless patents? Patents are used to protect their investments in technology, and the vast majority of patent lawsuits are between large corporations like the recent ones between Oracle and Google, Apple and Samsung, Dish Network and Tivo, and many, many others.

Dr. Huber claims that the Supreme Court's decision in Bilski v. Kappos somehow agrees with his view that patentability must be restricted. In fact, this decision did just the opposite. While business method patents were rejected by the court, as expected, the patentability of software was expanded.

Dr. Huber claims that plaintiffs in the Eastern District of Texas almost blindly reward plaintiffs in patent cases, but a recent study by the Stanford Intellectual Property Clearinghouse showed that plaintiffs in that jurisdiction win only 40.3% of the time.

Finally Dr. Huber gets to his point. Patent examiners and juries just aren't smart enough to figure out which patents are good and which are "sketchy." So instead, he wants the patent system changed to restrict inventors from owning the fruits of their intellectual labor. As an individual inventor I object to his condescension and to his attempt to limit this constitutionally protected driver of American innovation.

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Get Smart

SAFE offers training at our facility or yours or on the Web. Contact us to make arrangements:

MCLE credit in software IP

CodeSuite certification

Your New Office

Remember that you can now have your own secure office at the SAFE facility for storing proprietary software, running CodeSuite, analyzing the results, and getting onsite support. We're located at

20863 Stevens Creek Blvd.
Suite 456
Cupertino, CA 95014
(408) 517-1167

Scanning Tools

The Software IP Detective's Handbook

My book on software intellectual property, a labor of love (and hate) for the last two years, has just been published by Prentice-Hall. The book is intended for several different audiences including computer scientists, computer programmers, business managers, lawyers, engineering consultants, expert witnesses, and high-tech entrepreneurs. Some chapters give easy-to-understand explanations of intellectual property concepts including copyrights, patents, and trade secrets. Other chapters are highly mathematical treatments describing quantitative ways of comparing and measuring software and software IP. The first chapter of the book outlines which chapters are most important for the different audiences.

Overall the book covers the following topics:

• Key concepts of software intellectual property
• Comparing and correlating source code for signs of theft or infringement
• Uncovering signs of copying in object code when source code is inaccessible
• Tracking malware and third-party code in applications
• Using software clean rooms to avoid IP infringement
• Understanding IP issues associated with patents, open source, and DMCA
  

You can purchase your copy from Amazon.com here.