A group of lawyers is forming a gang to take down some software patents. I applaud this action as there are some remarkably silly software patents out there1, such as the patent on double mouse clicks by Microsoft. There doesn’t seem to be any checking for obviousness or prior art in the Patent Office, nor much review of patents after issuance. Personally, if the same functionality is re-invented numerous times independently, that would seem to make a strong case for “obviousness”.
While it might seem that big businesses like Microsoft would fight against this, in fact most large corporations acquire software patents as a form of “mutal assured destruction”. I.e., Microsoft has a large patent portfolio not to enforce it but in order to counter threaten any company that sues Microsoft for patent infringement. It also serves as a guild system, whereby large corporation cross license each other’s patents in bulk, a system that strongly disadvantages any company too small to have a large patent portfolio.
It’s important to remember that patents aren’t a basic right, but merely a mechanism to encourage “Science and the useful Arts”. If the Patent Office cannot keep up with the state of the art in software such that it can reasonably detect those patents which are obvious or have prior art, then it would seem best to not have software patents at all.
1 Frankly, I think the very concept of a software patent is a terrible one, but we’re unlikely to get rid of it anytime soon.