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First Monday Editorial Group




The annual number of patent lawsuits filed in the U.S. has roughly tripled from 1970 to 2004. The number of suits was more or less steady in the 1970s, climbed slowly in the 1980s, and exploded in the 1990s. Why? The usual answers point to (1) the growth of the “new economy” and the concomitant explosion of patenting, (2) the failure of the Patent Office to reject patents on old or obvious inventions, or (3) the rise of the patent troll. There is an element of truth in all these answers, but even collectively they do a poor job explaining the patent litigation explosion. The comprehensive empirical research, presented in our forthcoming book [1], identifies fuzzy boundaries of the patent property right as likely the main cause of the explosion. Our research also shows that as the problem of fuzzy boundaries has grown worse, the patent system has turned from a source of net subsidy to R&D to a net tax. Patents now discourage investment in innovation.

The burden of litigation and the harm caused by fuzzy boundaries falls unevenly across fields of technology. Technologies that rely heavily on software are vexed by elevated patent litigation costs. This bodes poorly for cyberinfrastructure which will depend heavily on software innovation, and will probably attract significant unwanted attention from patent owners.

We provide evidence below that software patents have more severe boundary problems and generate greater litigation costs than most other patents. Software patents tend to perform badly because the associated property rights are often expressed quite abstractly. The problem of mapping words to technology is difficult for any kind of technology, but it is especially difficult for software inventions because of the abstract nature of the technology. The problem has been made worse because when the courts have considered software inventions they have relaxed patent law doctrines that work to limit abstraction in other areas of technology. As a result, patent–based property rights to software inventions are not tethered to a specific device or to a specific physical or chemical process. Ironically, verbal descriptions corresponding to precise mathematical representations may be ambiguous; this is because of the inherent abstraction of the mathematical representations.

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