Of Smart Phone Wars and Software Patents
27 J. Econ. Persp. 67 (2013)
20 Pages Posted: 10 Jul 2013 Last revised: 29 Oct 2015
Date Written: January 2, 2013
This article discusses the competing values of the U.S. patent system by placing the recent smart phone litigations in context with similar historical periods of patent dispute. Recognizing that software has characteristics of a general purpose technology, we provide a systematic list of U.S. patent classes and subclasses likely to contain inventions with software elements. Through this definitional lens, we compare USPTO data on the examination outcomes, administrative and judicial appeals, and quality assurance on so-called "software" patents to better understand the role of such patents in the smart phone litigations. We find that "software" patent applications are treated largely the same as those in other technologies, and that the USPTO both allows and rejects these applications at a high rate of compliance with applicable laws. We also take note of significant improvements to the patent system from the America Invents Act as well as ongoing USPTO efforts to ensure that the scope of patent rights is commensurate with the disclosure of new and useful technologies. These improvements and efforts reflect an appropriately systemic approach to encouraging innovation and the diffusion of knowledge.
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