I don?t believe any evidence was presented in this piece to support the conclusion that software patents are ?slowing down innovation.? The public policy behind patents and copyrights is certainly not to stymie innovation ? just the opposite. The notion that ?by allowing the inventor to patent an entire concept, it kills the ability to innovate? is not true. In exchange for a patent, a inventive entity teaches the public how to make and use their invention. This public knowledge, in turn, provides a platform for further innovation that may not have existed if the knowledge had been kept secret. Furthermore, under U.S. patent law, even if a broad concept is covered by a patent, improvements thereon can be patented by others assuming the improvements are novel and not obvious.

It is true that IBM, Microsoft and other corporations have amassed large numbers of patents. But the big players can be sued for infringement by small players, too (e.g., the recent half billion dollar judgment against Microsoft for allegedly infringing a patent belonging to the University of California and Eolas). Without software patent protection, the innovation of small companies is truly at the mercy of larger competitors. Imagine how different things might have been if Tim Berners-Lee had asserted a patent covering HTML against Microsoft during the browser wars.

In my mind, the stockpiling of software patents is a symptom of the real problem ? an overwhelmed Patent and Trademark Office that is unable to do a proper job of screening out junk patent applications. The PTO needs to have a budget to hire more and better qualified examiners, and to perform in-depth prior art searches. Until Congress decides to change matters, I?m afraid things will get worse before they get better.