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Of Smart Phone Wars and Software Patents

27 J. Econ. Persp. 67 (2013)

20 Pages Posted: 10 Jul 2013 Last revised: 29 Oct 2015

Stuart J.H. Graham

Georgia Institute of Technology - Scheller College of Business

Saurabh Vishnubhakat

Texas A&M University School of Law; Duke University School of Law

Date Written: January 2, 2013

Abstract

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.

Suggested Citation

Graham, Stuart J.H. and Vishnubhakat, Saurabh, Of Smart Phone Wars and Software Patents (January 2, 2013). 27 J. Econ. Persp. 67 (2013). Available at SSRN: https://ssrn.com/abstract=2291603

Stuart Graham (Contact Author)

Georgia Institute of Technology - Scheller College of Business ( email )

800 West Peachtree St. NW
Atlanta, GA 30308
United States
404-385-0953 (Phone)
404-894-6030 (Fax)

HOME PAGE: http://https://www.scheller.gatech.edu/graham

Saurabh Vishnubhakat

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States

Duke University School of Law

Durham, NC

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