U.S. Patent Reform Bill: An Interview with Mark Webbink
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Koman: In the long-range view, what would you propose is the best solution to the patent morass?

Webbink: Well, you know, there's the world we live in and the world I'd like us to live in. The world I'd like to see us live in would never have allowed patents on software in the first place. You already had copyright protection. There's no other area of art that gets both copyright and patent protection. Software is the only one.

And if software is so doggone unique as to require the characteristics of both of those, perhaps software is unique enough that it deserves its own system of protection. I've been trying to raise a public discussion around this. If we had a whole new system, what would it look like? Would it protect things for the life of the author plus 70 years? Or maybe it would only protect things for 20 years? Or maybe it would only protect things for six or seven years--you know, double the life of the typical software package. Would it allow protection of minute, little, incremental changes, or it would only protect rather substantial and complete packages? To my way of thinking, what you want to do is protect the guy who's really been innovative, not the guy who's just tweaking things incrementally.

Dan Bricklin, when he came up with VisiCalc, you know, that was an innovation, Excel wasn't. And yet there are more patents filed around Excel and none filed on VisiCalc--which certainly helped Microsoft get started. Those are some of the things I've discussed. I published a paper ("A New Paradigm for Intellectual Property Rights in Software") through the Duke Law and Technology Review, where I talk about this a little bit.

That's the world the way I'd like to see it. The world we have is one of incremental reform. And what we have to do is find ways we can get the kind of reform we need, and it may be time to look at the patent system and say, one size doesn't fit all. Some of the ardent patent proponents will say, "Well, we can't be dividing up the patent system and treating pharmaceuticals differently than we treat software."

And I gotta say, why not? We already carve some things out and treat them differently. For example, a physician cannot be sued for patent infringement for practicing a method that someone may claim a patent on. That's for public policy reasons. There are other areas of patent law where it does differentiate to some extent. Why not make them more manifest? Give the pharma industry the 20 years of protection they need because it takes so long to get their drugs approved.

But look at software, and just say, well, six years, seven years, eight years, that ought to be plenty. And by keeping the term shorter you actually provide a better possibility of rapid innovation than by keeping a 20-year term.

Koman: Do you have any traction on this idea within the industry?

Webbink: (Laughs) Not yet. I mean, I keep raising it and there are some people with some of the major companies that have looked at it and said, "You know, you have a point there. Whether we'd ever get it changed that much is another question. But there is certainly some validity to the argument."

Koman: Microsoft has been advocating for patent reform for a while.

Webbink: Brad Smith has called for patent reform and what he called for was largely in line with the original Lamar Smith legislation. And probably 90 percent of what Brad Smith was asking for, I would have said, yeah, that's fine. Those are good things.

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