Patent Reform Takes a Hit From the Tech Industry

Tim Lee reports that a key provision in Rep. Bob Goodlatte’s patent reform bill has been axed:

One provision would have expanded what’s known as the “covered business method” (CBM) program, which provides an expedited process for the Patent Office to get rid of low-quality software patents….The CBM program provides a quick and cost-effective way for a defendant to challenge the validity of a plaintiff’s patent. Under the program, litigation over the patent is put on hold while the Patent Office considers a patent’s validity. That’s important because the high cost of patent litigation is a big source of leverage for patent trolls.

The original CBM program, which was created by the 2011 America Invents Act, was limited to a relatively narrow class of financial patents. The Goodlatte bill would have codified a recent decision opening the program up to more types of patents….But large software companies had other ideas. A September letter signed by IBM, Microsoft and several dozen other firms made the case against expanding the program. The proposal, they wrote, “could harm U.S. innovators by unnecessarily undermining the rights of patent holders. Subjecting data processing patents to the CBM program would create uncertainty and risk that discourage investment in any number of fields where we should be trying to spur continued innovation.”

It would be hard to overstate just how self-serving and absurd the IBM-Microsoft position is. The notion that an expedited process for evaluating business process patents would discourage investment is laughable. This is the purest example of special pleading since Rob Ford tried to justify his crack use by explaining that he was hammered at the time.

Which wasn’t that long ago, was it? This just goes to show how common special pleading is—and also goes to show just how seriously we should take it. The good news here is that apparently the CBM provision is still alive in the Senate, so there’s still a chance it could make it into the final bill. We can hope.