A New Paradigm For

Intellectual Property Rights

In Software

Duke Intellectual Property and Cyberlaw Society

Fourth Annual Hot Topics in intellectual Property
Law Symposium

Mark H. Webbink
Deputy General Counsel
Red Hat, Inc.
 Microsoft Innovation
A B C
100,000
10,000
1,000 Revenue
R&D Spending
100 Patent Applications Filed
A – FTC Commences
10 Initial Antitrust
Investigation
1
B – Initial Case Settled
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
C – Justice Dept.
Years Commences New
Antitrust Investigation
“Even if [software] patents prove available
in the United States, only the very few
programs which survive rigorous application
and appeals procedure could be patented.”

National Commission on New Technological

Uses of Copyrighted Works (CONTU) - 1978
"If people had understood how patents would be
granted when most of today's ideas were
invented and had taken out patents, the industry
would be at a complete standstill today."

Bill Gates - 1991

I feel certain that some large company will patent
some obvious thing related to interface, object
orientation, algorithm, application extension or other
crucial technique.

Bill Gates - 1991

Inventions That Would Have Just Come
Off Patent In The Year 2000 Had
Software Patents Been Available In
1978
WordStar (1979) – the first PC-based word
processor
VisiCalc (1979) – the first PC-based spreadsheet
Harvard Graphics (1983) – the first PC-based
presentation graphics
 Patents
Covering:

Pfizer's Merck's
Viagra Zocor

Microsoft
Cursor Positioning and
Movement
 Microsoft Innovation
A B C
100,000
10,000
1,000 Revenue
R&D Spending
100 Patent Applications Filed
A – FTC Commences
10 Initial Antitrust
Investigation
1
B – Initial Case Settled
85
86
87
88
89
90
91
92
93
94
95
96
97
98
99
C – Justice Dept.
Years Commences New
Antitrust Investigation
Bessen & Hunt
“By the mid 1990s, software patents became a
relatively inexpensive way to expand patent
portfolios. This may have increased the
attractiveness of a strategy that emphasizes
patent rights over a strategy based on R&D.”

“The Software Patent Experiment” - 1994

Bronwyn Hall

“The implication is that in rapidly innovating

industries where each new product builds on
others, welfare is more likely to be enhanced by
having a high hurdle for obtaining a patent.”

“Business Method Patents, Innovation and Policy ” - 2003

“To promote the Progress of Science and
useful Arts, by securing for limited Times to
Authors and Inventors the exclusive Right to
their respective Writings and Discoveries.”

Clause 8, Section 8, Article 1,

U.S. Constitution
“[The U.S.] needs to revamp not just the
patent system, but the entire system of
intellectual property law.”

- Andy Grove, Chairman, Intel

 Reforming the Patent System
• Non-diversion of PTO fees
• Third-party participation in the patent examination process
• Post-grant oppositions
• Challenges to the validity of patents to be based on a
“preponderance of the evidence,” not “clear and convincing
evidence” standard
• Restoration of the once-strong non-obviousness standard
• A higher threshold in finding willful infringement
• A higher threshold before granting injunctive relief
• Publication of all patent applications after 18 months
• Harmonization with Europe to narrow the scope of what is
patentable in the software and business method arenas as
well as assuring the right to interoperability
 Characteristics of a New IP
Paradigm for Software

™ A shorter term of protection (5-7 years

would maintain the speed of innovation)
™ Protection only for complete systems or
features, not components (avoids the
trivial)
™ Strong protection (reward first movers)
™ Published source code (allows
knowledge to advance)
™ Interoperability assured