Big Blue Swinging a Big Stick

Leads Pack in Cloud Patents. But What Does Alice Say?

IBM is leading the pack in developing cloud patents, according to a recent piece in Computerworld. But is the outlook sunny?

IBM is touting its fat IP portfolio, indeed. That’s (count ‘em) 7,534 patents in 2014 alone. Microsoft won 2,829 in the same period, Amazon 745. But IBM is getting flattened in the market right now, after being a market darling between about 2004 and 2011 or so.

Could IBM be expending too much energy on the IP portfolio? I doubt it. Their strategy has been quantity over quality and it still is. Which gets me thinking: maybe there are some positive effects of Alice after all.

Patent preparation and prosecution, especially in the technology space, has become commoditized during the past 15 years. Many technology companies focused on quantity over quality. They used their stacks and stacks of patents to drop a heavy anvil on anyone who dared to assert a patent against them, or in cross-licensing where few of the actors read each of the patents exchanged.

Then along came Alice, and some other similarly leaning precedents, including Bilski (which feels like ancient history now). And guess what? It’s not as easy to draft a commodity patent as it once was. At least, not a valid one.

That said, drafting a valid technology or even software patent is not impossible. None of the case law prohibits such patent coverage. It just takes some skill in prosecution. Maybe the “art of patent prosecution” is being resurrected. Maybe the patents that will issue from this newly reinvigorated technical art will be stronger and better able to withstand validity challenges.

All this would be good for patent law, for innovation, and the economy. That may be some time away, though, because IBM’s 7,500+ patents in 2014 speak otherwise.

But stay tuned. As the man sang, “the times, they are a-changin’.”



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