Are Patents on Interfaces Impeding Interoperability?

Abstract

Many commentators and policymakers have recognized that patents on interfaces can be and sometimes have been exercised to block the development of interoperable technologies. Out of concern about the exclusionary power of such patents, they have proposed a wide array of legal and policy measures to ensure that interoperability can occur. This Article is the first comprehensive analysis of the twenty-some policy responses that have thus far been proposed or implemented to blunt the power of interface patents.

This Article 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 the secrecy of interface information, which may be difficult or impossible to reverse engineer, and changes in interfaces that may attend new versions or features of an ICT system. The Article explains why it would be difficult to bring about more interoperability by mandating greater disclosure of interface information or regulating what kinds of changes firms can make to their interfaces.