Reforming Software Patents

Intellectual Property and Patents

Article Snapshot


Colleen Chien


Houston Law Review, Vol. 50, No. 2, 2012


The author looks back to the agrarian and railroad patent crises to draw parallels to software patent reform efficacy.

Policy Relevance

There is nothing new under the sun—even in software patent reform. The agrarian and railroad patent crises of the 1800s provide valuable insights into what works and what does not as current potential software patent reforms are considered.

Main Points

  • General fears about the patent system, particularly regarding patent trolls—those accused of criminal like “shakedowns” of productive companies through patent assertions—is nothing new.
  • The current patent crisis goes back to 1998 when the Federal Patent Circuit confirmed the patentability of business method patents. The technology boom followed on its heels and tech patents skyrocketed.
  • Current proposed solutions have been tried before; in the case of software patents there are many similarities to the agrarian and railroad crises of the late 1800s.
  • The commonality between the current software patent crisis and the agrarian and railroad patent crises is: many patents covering the basic building blocks of the economy, patents held by specialized and invulnerable patent plaintiffs who are in good position to employ nuisance fee economics.
  • The agrarian and railroad crises were not solved through broad and substance centered legislative changes.
  • Current proposals to fix software patents fall into the following categories:
    • Proposals to reduce the number of software patents;
    • Proposals to strengthen patent defenses and change remedies;
    • Proposals to lower the incentive to bring nuisance suits; and
    • Proposals for patent holders to use “self-help.”
  • History suggests that the best way to reform software patents is through incremental court and market based reforms, utilizing the often underestimated power of self-help to force behavioral change in the industry, rather than trying to obtain broad legislative reform.


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