One of the most important aspects of patent protection is its disclosure requirement. The technology being patented must be described in detail, and it can be added to the prior art used to examine later patents or serve as a source of information to those interested in a particular technology. Software patents have remained a problem in the United States partly because there was a period when the U.S. Patent and Trademark Office was viewed as hostile to them. So techniques from the early period of computer applications are not in the patent office's prior art collection, thus increasing the likelihood of its issuing bad software patents.

What is needed is a new form of protection that can be used in lieu of a patent or until a patent is granted. IEEE-USA, through its Intellectual Property Committee, currently chaired by Andrew Greenberg, has long recognized the need for a new form of protection for fast-moving technology, and a number of countries have a "petty patent," which provides limited, short-term protection. Australia, for example, recently revised its patent laws to create an "innovation patent" [see "Patents Lite: Aussies Pioneer a Cheap and Easy Way to Protect Inventions," Invention, November 2004].

However, because the innovation patent appears simply to trade off a reduced term for a lower standard of patentability, and petty patents often exclude technologies such as software where they could have the greatest benefit, they should not be adopted as a way of addressing software patent problems.

Instead, a new "limited patent" should be developed that grants protection from the moment the technology is first used in commerce. The primary purpose of the limited patent would be to provide immediate protection for technology that—once on the market—could otherwise be copied by a competitor before regular patent protection could be secured. Inventions not actually available in the marketplace would not be protected.

Protection would last for four years, enough time to establish a market and about the time required to process a regular patent application today. That would allow inventors to have immediate protection against knockoffs of a technology even as they try to get broader protection by meeting the more stringent requirements for a conventional patent. It would also encourage further innovation, because new features could get their own four-year protection.