If I'm right that, as I argued on Friday, there's a cultural gap between the patent bar and the technology industry on the subject of software patents, an interesting question is how we got them in the first place. After all, it wasn't that long ago that software was widely believed to be unpatentable, and major technology firms were hardly clamoring for patent protection. Peter Mennell, a Berkeley law professor who spoke at last Wednesday's Brookings patent conference had an interesting perspective on how this came about. He argues that the impetus for software patents came from patent attorneys within major software firms who spread the "gospel of patenting" within their companies. Not surprisingly, CEOs tend to delegate patent issues to their patent lawyers, and of course patent lawyers will tend to have more pro-patent views than their bosses. And so despite the fact that few technology executives were enthusiastic about patenting, the patent lawyers who worked for them pushed their firms in that direction. And of course, once some software firms started acquiring significant numbers of patents, it sparked the arms race that we've talked about here at Techdirt.

To be clear, I don't think that firms' patent attorneys were deliberately flouting their bosses' orders or working against their companies' interests. Rather, I think that patent lawyers genuinely believed (and still believe) that software patents would be good for their own firms and the broader software industry. This is similar to a phenomenon I noticed when I was researching eminent domain abuse: even lawyers who made their living defending property owners against abuses of the eminent domain system didn't think it should be illegal to take someone's property for private profit. Rather, they tended to think that the solution was to add additional layers of review to filter out the worst abuses. Obviously there's an element of self-interest here. Scaling back the number of eminent domain cases or software patents means fewer jobs for eminent domain or patent lawyers, respectively. But I think the far more important explanation is that when you have a hammer, everything looks like a nail. When you're an expert on the minutia of a particular body of law, you're naturally going to think that the solution to any given problem is to fine-tune that body of law. They tend not to think about reforms that would involve getting the lawyers out of the picture altogether.

I think the good news (if you can call it that) is that the patent system is getting so dysfunctional that it's starting to generate interest from corporate CEOs, most of whom are not patent attorneys. A Hill staffer, who spoke on the same panel as I, mentioned that he's seen an increasing trickle of tech companies coming to Capitol Hill to lobby for patent reform. As it becomes more obvious that software patents do little to promote innovation and are mostly a wealth transfer from the software industry to the patent bar, I think we'll see more tech industry CEOs paying attention to the patent problem. And most of them will be less committed to software patents than their patent lawyers are.

On Wednesday I attended the Brookings Institution's conference on "The Limits of Abstract Patents in an Intangible Economy." The conference was organized by software patent skeptics, so that perspective has been well represented. But I was struck by the dramatic differences between the views of lawyers on the one hand (who made up the majority of the panelists and audience members) and the handful of technologists on the other. The first panel focused on the economics of abstract patents, and included a mix of technologists, economist, and lawyers. All of the panelists spoke about the serious problems being caused by patents in the software industry and argued for dramatic restrictions on software and business method patents. The tone of the second panel, which focused on legal issues, was rather different. All of the panelists were lawyers, and although they acknowledged that the patent system had problems, and that these problems are especially serious in the software industry, their focus was on abstruse details of patent law. None of them supported explicit restrictions on software patents, and few seemed to feel any urgency about the need to rein in patenting in the software industry. I think this contrast is reflected in the broader software patent debate—patent attorneys and law professors who write about patent law are overwhelmingly in favor of patents on software, and prefer to argue about how to fine-tune patent law to get fewer "bad" software patents without invalidating the "good" ones. In contrast, a lot of computer programmers simply wish the patent system would leave them alone.

There are a couple of ways you can view this split. On the one hand, it's possible that the economists and technologists on the first panel are naive and don't understand the complexities of patent law. Maybe broad restrictions on patenting of software or other abstract inventions would have unintended consequences in other parts of patent law that only one schooled in the minutia of patent law can understand. On the other hand, the perspectives found on the second panel could be a reflection of the solipsism of the patent bar. Patent attorneys seem to have an unshakable faith that there's no sector of the economy that couldn't be improved by more patenting. I suspect that one reason for these different attitudes has to do with the role the two groups play in the software industry. Patent attorneys only interact with those parts of the software industry that participate in the patent system. When software engineers write useful software without seeking patents on it—a vastly more common occurrence—patent attorneys will, by definition, not be there. Therefore, patent lawyers are inevitably going to over-estimate the importance of patents to the software industry. In contrast, the average programmer deals with the patent system infrequently. For a lot of entrepreneurs, patents are basically a nuisance—they have to get some for defensive purposes, but they're not an important part of their business plans. For employees at larger firms, patents are basically irrelevant to their day-to-day jobs. No programmer starts a programming project by consulting the patent database.

As a consequence, the two communities have radically different views of how well the patent system is working. The lawyers certainly acknowledge that there's a problem, but they seem to find it incomprehensible that there could be a major American industry that's better off without patent protections. Techies understand that patents are not an important part of the software industry, and so they're much more likely to say that their industry would be better off without them.

Ed Felten raises a rather important question concerning the lack of knowledgeable computer scientists or other voting technology experts on the Election Assistance Commission (EAC) Board of Advisors. As Felten notes, the EAC is in charge of setting voting technology standards, and four slots (out of 39) on the board are specifically allocated for "members representing professionals in the field of science and technology." Already, only 4 out of 39 seats seems rather low, considering how important the technology choices are -- but it's even worse when the people filling those slots aren't actually technologists. Yes, Felten points out that three of the four slots are held by folks who are:

accomplished people who have something to offer on the board. But as far as I can tell they are not "professionals in the field of science and technology," so their appropriate positions on the board would be somewhere in the other thirty-five seats.

So, basically, as it stands, the group in charge of setting voting tech standards appears to have only one technologist on board, and that person, Barbara Simons, was only recently appointed.