By Pamela Samuelson. Full text here.
Commentators and policymakers have frequently expressed serious concerns about the exclusionary potency of patents on communications protocols and interface designs for information and communications technologies (ICT). Among the proposed policy responses to potential harms arising from the exercise of such interface patents are excluding interfaces from patent protection, immunizing use of patented interfaces when necessary to achieve interoperability, tailoring certain patent rules to foster greater interoperability, withholding injunctive relief for infringement of interface patents, and treating refusals to license interface patents as abuses of intellectual property rights or violations of competition or antitrust laws.
This Article is the first comprehensive assessment of the twenty-some proposed policy responses to the exclusionary potency of interface patents. It makes four main points. First, there is less need for strong regulatory measures, such as barring patents on interface innovations or treating the exercise of interface patents to block interoperability as misuse of the patents, than some commentators seem to believe. Second, insofar as interface patents do emerge as more serious impediments to interoperability than they have been to date, there are adequate policy responses in place in various countries that can be used to address them. Third, some tailoring of patent rules and patent reforms may be advisable in order to promote greater interoperability among ICT systems. Fourth, patents are often less of an impediment to interoperability than secrecy of interface information, which may be difficult or impossible to reverse engineer, ambiguity about precise details of the interface, and/or changes to interfaces that may accompany new versions or features of an ICT system. This Article explains why it may be difficult to bring about more interoperability by mandating more substantial disclosures of interface information or regulating what kinds of changes firms can make to their interfaces.