I want to thank the Committee for this opportunity to testify on some of the intellectual property questions surrounding software. This is an area that I personally find fascinating and provocative - so please excuse me if my testimony ends up leaving you with more questions than answers.
With no joke intended, software has been very, very good to me. I was fortunate enough to find a collaborator to craft an innovative piece of software called Lotus 1-2-3 - and that software evolved into both an industry standard and turned Lotus Development Corp. into one of America's most successful software companies.
Because it is impossible to know what patent applications are in the application pipeline, it is entirely possible, even likely, to develop software which incorporates features that are the subject of another firm's patent application. Thus, there is no avoiding the risk of inadvertently finding oneself being accused of a patent infringement simply because no information was publicly available at the time which could have offered guidance of what to avoid. Please, require publication of patent application within a short period of their filing.
The period of patent protection, 17 years, no longer makes sense in an era when an entire generation of technology passes within a few years. My recommendation would be to consider substantially shortening the length of protection.
Most importantly, it is my heartfelt belief that many of the increasing number of recently issued software patents, concerning, for instance, fundamental techniques and artifacts of user interfaces, should never have been granted in the first place because of their failure to qualify as either novel or non-obvious. Some patents appear to preempt automation of common functions such as footnoting. This to me is like allowing a patent on the round steering wheel. The breadth of claims being allowed in these matters, is, in the words of Brian Kahin, Adjunct Research Fellow at Harvard's Kennedy School of Government, "often at a level of abstraction that is shocking to the uninitiated."
If some future litigant is successful in upholding rights to one of these "bad" patents It will require expensive and time-consuming litigation, whose outcome is frankly uncertain, to defend the rights of creators which should never have been challenged in the first place. If I speak very bluntly here, it is only because I am deeply concerned that a single bad patent court fight with a negative outcome, like a major environmental accident, could have catastrophic effects. I don't think we can afford the risk.