Down With Unimplemented Software Patents!

After the fallout over Microsoft's XML patent suit, the usual cries to ban software patents are in the air. I have another idea: Ban unimplemented software patents.

Most of the commentary I've read has been the usual schadenfreude over Microsoft getting whacked with a patent suit. But there's a healthy amount of attention being paid to the fact that if Microsoft can get sued and lose for something like this (although they're planning to appeal), so can a great many other people who use XML in anything other than a non-trivial way. OpenOffice.org -- or, rather Sun and Oracle -- seems like the next likely target if this continues unabated. And it's also entirely possible that this patent has entirely too much prior art (via something like LaTeX, for instance) to be granted.

Obviously all of this is a strong sign that we need to overhaul the way patents are granted and enforced. There's already discussion under way about that, so at this point it's not a matter of if but more a matter of when and to what degree. The ideas usually revolve around making things like abstract processes (e.g., software) unpatentable.

My idea is different. Require that patenting abstract processes, such as software or algorithms, require a working reference implementation.

Patents normally don't require this; you don't have to have a working version of an invention to patent it. But software or algorithms are another story. The effort required to create a working implementation of those things is arguably not much greater than drafting the diagram for an invention, and there are ways the implementation can be included with the patent filing (or archived somewhere) in formats that are as machine- and environment-neutral as possible.

This would accomplish two things. One, it would shift the burden of proof for any patent infringement suit that much more towards the plaintiff. Two, it would raise the bar for submitting such patents all the more. It would mean that only people truly serious about such a thing, people a notch or three above the usual Texas Hold 'Em Patent Troll, would submit such things and be entitled to protection for them.

Short of banning software patents outright, I think it's a good intermediate step. You?

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