Much (much, much, much) remains to be worked out, but here’s an outline of what I have in mind:
1. That the patent laws should recognize that business method and software patents are fundamentally different than other kinds of patents.
2. That business method and software patents should have a much shorter lifespan than the current 17 years — I would propose 3 to 5 years. This isn’t like drug companies, which need long patent windows because of clinical testing, or like complicated physical processes, where you might have to tool up and build factories. Especially in the age of the Internet, a good software innovation can catch a lot of wind in 3 or 5 years.
3. That when the law changes, this new lifespan should take effect retroactively so that we don’t have to wait 17 years for the current patents to enter the public domain.
4. That for business method and software patents there be a short (maybe 1 month?) public comment period before the patent number is issued. This would give the Internet community the opportunity to provide prior art references to the patent examiners at a time when it could really help. (Thanks to my friend Brewster Kahle for this suggestion.)
Two and four are brilliant. Reducing patent lifespans to 3-5 years would instantly make our current patent problems much smaller, because not only would patents be invalidated rather quickly, but because their lifespan is so short, people would have much less reason to file them in the first place.
By the way, note the date on this.