ILLUSTRATION: CARL WIENS

There are big problems with patents, especially software patents. It takes too long to get patent protection, particularly for fast-moving high-tech industries. Protection often goes beyond what is needed to prevent competitors from usurping new techniques, lasting about two decades and blocking even those who independently invented the technology. And the current limited examination—dictated by application fees—often doesn't give the examiner time to find and consider important "prior art," so that questionable patents are granted.

But scrapping software patents altogether is not the solution. Instead, I propose that a new form of intellectual property be considered that gives reduced benefits in exchange for speedy protection.

The debate over patents is in full swing as the U.S. Congress debates the Patent Reform Act of 2005 [see "Patent Reform Cacophony," Invention, IEEE Spectrum, December 2005]. Some have proposed replacing patents with copyright [see "New Legal Code," Invention, August 2005]. But it's been tried before, and it doesn't work.

Before software patents became common, copyright cases were going well beyond protecting programs from literal copying. In 1986, Whelan v. Jaslow used copyright law to give patentlike protection to a program's file structures and flow of information—its "structure, sequence, and organization"—but without any of the requirements, such as stating the scope of the invention, needed for getting a patent.

With patents, it is possible to determine what is protected, since the patent contains claims indicating the scope of protection. For copyright, the scope of protection beyond direct copying must often be determined through expensive litigation. And while patent protection lasts 20 years, admittedly a long time for software, the term of a software copyright can be a staggering 95 years or more.