In a recent Washington Post article, Vivek Wadhwa, a Stanford University fellow, identifies patent trolls as “modern day mafia.” Wadhwa focuses on software patents, the trolls’ favorite type of patent and the scourge of every retailer. Wadhwa looks briefly at the argument to eliminate software patents, advanced by tech giant Brad Feld, and then quickly focuses upon Mark Lemley’s argument that there is value in software patents if they are strictly limited to what was invented and not allowed to be perverted and twisted to extort royalties across industries for software well beyond the bounds of the actual invention. This problem is well known to every retailer. A troll takes a patent directed to a very specific software functionality and either files a continuation to broaden the claims or simply twists the existing claims with tortured constructions to apply the non-internet software to an internet application.
Lemley, and Wadhwa, argue for claims that are strictly limited to the actual program invented, instead of any program that performs a task or that uses the same inputs to generate the same outputs. Requiring software patents to be “picture-patents” – patents with very specific, limited claims – is an interesting approach. At a minimum it would make infringement less likely, and design arounds more clean. Of course, anything that makes infringement narrower, also narrows the universe of invalidating prior art. Additionally, such a drastic policy change would require action by Congress or the Supreme Court, both of which seem unlikely in the near term.