Research Versus Development: Patent Pooling, Innovation and Standardization in the Software Industry

Daniel Lin

1/01/2005
(Original Publish Date: 2002)

The issue of software patentability has a fascinating history, with both the U.S. Patent and Trademark Office ("PTO") and the courts struggling to grasp the concept of software and its proper place in the patent system. Today, however, the PTO and the courts both embrace the notion that software-related inventions are no different than any other inventions with respect to patentability. Indeed, it is estimated that the PTO currently issues more than 20,000 software-related patents a year. This Part first provides a brief introduction to the patent system as a whole. It then details the interesting development and the current trends regarding software patents. Finally, the Part maintains that, in light of current legal trends regarding software patents, contrary to certain popular conceptions, such patents can be helpful in producing the best results in software standardization. Furthermore, regardless of whether a software standard itself is open, software patent pools that ultimately control access to the standard may still arise because competitors will simply acquire software patents that surround the landscape of the open standard.