Software patents, facing new scrutiny in the U.S., drive innovation and protect huge investments by developers, representatives of software companies said during a Capitol Hill briefing.
The U.S. patent system isn't perfect, but lawmakers and judges shouldn't solve current controversies by eliminating software patents altogether, executives with Microsoft, Oracle, IBM, Covia Labs and Procter & Gamble said during a briefing Thursday before congressional staffers in Washington, D.C.
"As my grandmother used to say, you don't throw the baby out with the bath water," said Dorian Daley, senior vice president and general counsel at Oracle.
Instead, lawmakers should look at ways to improve patent quality, make it tougher for patent licensing firms to file infringement lawsuits and require companies to be transparent about the patents they hold, Daley said during the briefing, sponsored by software trade group BSA and the National Association of Manufacturers.
But companies can be transparent about the patents they hold without congressional action, said Brad Smith, Microsoft's general counsel and executive vice president. Microsoft will publish information on all the patents it holds by April 1, Smith announced.
Congress passed the America Invents Act, a patent reform bill, in late 2011, but it can do more, panelists said. Smith called on Congress to look into requiring the loser of a patent infringement lawsuit to pay the winner's legal expenses. That change would give pause to so-called patent trolls -- patent licensing companies that produce no products -- before they file lawsuits, he said.
Microsoft and Oracle were among the companies supporting patent reform efforts during the last seven years that some critics say would have weakened patent protections and made it harder for patent holders to collect huge damage awards. But Smith and Daley argued Thursday that software patents need to be protected.
Software patents have been under fire for several years, with some tech lawyers and advocacy groups calling on Congress to scrap or weaken them. The Free Software Foundation has long advocated for an end to software patents, saying they threaten a wide range of companies.
But just this month, the U.S. Court of Appeals for the Federal Circuit heard a case that could have a broad impact on software patents. In the case, CLS Bank v. Alice Corp., the court is considering whether companies should be able to get patents on abstract ideas when they combine those ideas with a computer process.
Developing complex enterprise-level software takes time and money, and patents help protect that investment, Daley said. "In today's environments, where hundreds of thousands of apps are just a click away on all of our mobile devices, it's pretty easy to see how some assume that software development is easy," she said. "I'm here to tell you it's not. It requires highly skilled engineers and incredible investments."
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