Congressional Briefing on Software Patent Reforms

By Renee Dopplick, ACM Director of Public Policy
February 22, 2013

Leading high-tech executives spoke this week on the best ways to promote innovation and improve the quality of software patents at an industry-sponsored Congressional briefing. The briefing was organized by the Business Software Alliance and hosted by House Majority Leader Eric Cantor. Former USPTO Commissioner of Patents Bob Stoll moderated the discussion with panelists from IBM, Microsoft, Oracle, Covia Labs, and Procter & Gamble.

The briefing came a week after President Obama said in a Google+ Hangout that the comprehensive patent reform under the recently enacted American Invents Act “only went halfway,” implying the need for additional legislation. It also came two weeks after an important software patent eligibility case was heard before the U.S. Court of Appeals for the Federal Circuit, the federal court that specializes in patent law, and the same week that Microsoft filed an amicus brief in support of Oracle in its appeal against Google in an intellectual property case involving the Java programming language. IBM, Microsoft, and Oracle are members of the Business Software Alliance. Google is not a member.

In looking at whether the federal government is doing enough to promote technology innovations of American corporations, small businesses, and entrepreneurs, the speakers agreed that government shouldn’t threaten the broader mechanisms of patents and intellectual property rights. They highlighted the benefits of software patents to incentivize investments in software research and development, to allow innovators and startups to attract investors in novel technologies, and to protect against competitors exploiting their technologies without permission. One common theme across the panelists was that federal action should emphasize improving the quality of software patents.

IBM’s Vice President and Assistant General Counsel Neil Abrams stated, “New innovations often require investments of unprecedented size, and patents are necessary to protect these investments.” He highlighted that IBM Watson, a supercomputer that won Jeopardy a few years ago, is comprised of many patents, including software patents issued in 2012. “Software is increasingly the way that innovation is implemented across virtually all industries, not just the software industry,” he said. He concluded his prepared remarks by stating, “Improving patent quality increases certainty and spurs investment, and, in turn, will help our economy grow.”

Microsoft’s Executive Vice President and General Counsel Brad Smith emphasized that the patent system has “remarkable strengths,” yet we need to have “sensible reforms” to address the system’s weaknesses. He asserted that all three branches of government, as well as private industry, will need to support and participate in changes in order to “advance a high-quality patent system that, especially for information technology, encourages the responsible licensing of patents and deters abusive litigation.” He challenged industry to follow Microsoft’s lead in voluntarily disclosing patent ownership information and not to wait for the federal government to act. To help curb frivolous lawsuits, he called upon Congress to pass “loser pays” legislation, requiring the loser to pay the winner’s legal fees.

Oracle’s Senior Vice President and General Counsel Dorian Daley stated that protecting software patents is critically important to innovation and that weakening software patents will only put companies, employees, and customers at risk. She recommended three potential governmental actions to strengthen the software patent system: (a) improve the quality of software patents, (b) require public transparency concerning the ownership of patents, a proposal currently being considered by the USPTO, and (c) pursue “targeted” litigation reforms.

Covia Labs’ CEO David Kahn explained his company develops command-and-control capabilities used in critical infrastructure. He stressed the importance of software patents for startups to obtain funding because it shows that the “technology is real” and that it “can be defended.” He further added, “When important innovation happens, that person needs protection from the idea being stolen.”

Procter & Gamble’s Director of Corporate R&D Tom Lange represented the manufacturing industry perspective. He stated, “Innovation is our lifeblood. Behind [every one] of those innovations, there is software in how we manufacture the product, and there is software in how we design and analyze that particular innovation.”

USPTO Commissioner of Patents Bob Stoll called for more resources to be given to the U.S. Trademark and Patent Office, such that examiners could have improved tools, increased time to adequately review applications, and additional training relevant to technology and software patent issues. He also encouraged applicants to be clearer in their claims and disclosures.

USPTO Public Roundtable on Software Patents on February 27
The U.S. Patent and Trademark Office is hosting the second of two public meetings this month to get input on how to better address software patent issues as part of its new Software Partnership with industry. The schedule and live webcast for the public hearing on Wednesday, February 27 are available at: