The controversy regarding patents goes back to the early days of the republic. Thomas Jefferson was vehemently opposed to monopolies of any sort and required convincing from James Madison before he agreed to approve the Patent and Copyright clause of the United States Constitution. This clause grants inventors a monopoly “for limited Times” in order "[t]o promote the Progress of Science and useful Arts." Embedded in this clause is the genesis of the initial and ensuing debate, namely that monopolies are not a good thing and are grudgingly granted in order for the public to receive the benefits of progress—a quid pro quo.
Whether or not the public is receiving the benefit of this bargain is always central to any argument either for or against patents in general. Software patents, for example, have generated a spirited debate regarding whether or not they promote or impede innovation, as have biotech patents, and so forth going back to the days of Henry Ford. In this regard the controversy surrounding business method patents (BMPs) is nothing new. In particular, a common complaint is that assessing prior art is more difficult with respect to BMPs, but this is difficulty is pertinent to nearly all patent categories. Software patents were previously attacked on similar prior art assessment grounds. The old arguments are often recycled for each new technology (see Internet Business Method Patents).
The bottom line is that love them, or hate them, patents, in some way, shape or form, will remain an important part of the American (and the world's) intellectual property regime for many years to come. There is now, and often has been, much discussion about patent reform, but there are powerful interests that are motivated to maintain the status quo. Other powerful interests that are pushing for change, are likely doing so out of their own rational economic self interest. The net/net is that changes in patent law will likely take the form of "tweaks" as opposed to a major overhaul. Nonetheless, one organization's tweak may be another's overhaul and therefore the discussion (and at times the acrimony) will continue.
In short, patents are yet another component of the "digital law" reality that an online entrepreneur must contend with. Although not as ubiquitous as copyright or trademark doctrine in the day to day affairs of the majority of online businesses, depending on the client's niche, patents could be mission critical. This tutorial focuses on U.S. patent law with a brief introduction to international treaties.
|As Internet Lawyers we offer patent advice but not patent prosecution.|