Many policymakers assume that any increase in intellectual property protection must be good for whoever works in the field. As we've tried to show, this is assuredly not the case in the field of computer programming. Nearly all programmers view patents as an unwelcome intrusion, limiting both their ability to do their work and their freedom of expression.
At this point, so many patents have been issued by the Patent and Trademark Office that the prospect of overturning them by finding prior art, one at a time, is almost unthinkable. Even if the Patent Office learns to understand software better in the future, the mistakes that are being made now will follow the industry into the next century unless there is a dramatic turnaround in policy.
The U.S. Patent and Trademark Office recently established an Advisory Commission on Patent Law Reform that is charged with examining a number of issues, including software patents--or what it prefers to call patents on ''computer-program-related inventions.'' Unfortunately, the commission's subcommittee on software does not include any prominent software industry representatives who have expressed doubts about software patents. But the subcommittee is required to consider public comment. The commission's final report is not due until August 1992, so there is still time to make one's voice heard.
Although influencing the Patent Office might produce some benefits, the really necessary reforms are likely to come only through intervention by the Supreme Court or Congress. Waiting for Court action is not the answer: No one can force the Supreme Court to rule on a relevant case, and there is no guarantee that the Court would decide to change Patent Office practice or to do anything about existing patents. The most effective course of action, therefore, is to encourage Congress to amend the patent law to disallow software patents and, if possible, invalidate those that have already been awarded. The House Subcommittee on Intellectual Property and the Administration of Justice, chaired by Representative William J. Hughes (D-N.J.), should take the lead by scheduling hearings on the subject and calling for a congressionally sponsored economic analysis of the effect of software patents on the industry.
The computer industry grew to be vibrant and healthy without patents. Unless those who want software patents can demonstrate that they are necessary to the health of the industry, Congress should feel justified in eliminating this barrier to innovation.