Some question whether or not patents are stifling innovation, and while there are many proponents of patents relative to the intellectual property issue, there are also many concerns raised, especially in the arena of commerce.  Some in the business world have wondered whether something as ethereal as one's way of doing business might even be eligible for patents or copyrights.  Other concerns revolve around the question of whether an increase in patents will encourage or restrain product development.  If business methods do come to be patented, will patents preclude the spread of the most effective practices?  How will this effect the economy?  Some argue that a proliferation of patents is less dangerous to the economy than currently expansive copyright protections. 

Business on the internet may be most affected by the patent explosion accompanying the current technology surge.  Michael Cooney, News Editor at Network World, reported on the ongoing patent backlog in February of 2008.  Even with its increased hiring estimates of 1,200 patent examiners each year for the next five years, he reports, the US Patent and Trademark Office patent application backlog is expected to increase to over 1.3 million at the end of fiscal year 2011, according to the Government Accounting Office.

The USPTO has also estimated that if it were able to hire 2,000 patent examiners per year in fiscal year 2007 and each of the next five years, the backlog would continue to increase by about 260,000 applications, to 953,643 at the end of fiscal year 2011, the GAO said.  Despite its recent increases in hiring, the agency has acknowledged that it is now focused on slowing the growth of the backlog instead of reducing it.  

According to an IDG News Service story, the House in September of 2007 passed a patent reform bill — supported by many large tech vendors, but opposed by several small tech companies — but similar legislation was stalled in the Senate.  Large tech vendors, including Microsoft, IBM and Symantec, have called for patent reform, saying it's too easy for companies with no intention of creating products to buy up patents and file multimillion-dollar infringement lawsuits against other companies.  This is essentially a David v. Goliath battle.

In the meantime, the USPTO is being overwhelmed, the GAO said.  Its report states that while the USPTO is hiring as many new patent examiners as it has the annual funding and institutional capacity to support, attrition has continued to increase among patent examiners-one patent examiner has been lost for nearly every two hired over the last five years.  Approximately 70% of the patent examiners who left the agency had been at USPTO for less than 5 years, and nearly 33% had been at the agency for less than one year. 67% of patent examiners identified the agency's production goals among the primary reasons they would consider leaving the agency. These goals are based on the number of applications patent examiners must complete during a 2-week period, the GAO said. However, the assumptions underlying these goals were established over 30 years ago and have not since been adjusted to reflect changes in the complexity of patent applications.

But as internet innovators face this backlog in their efforts to patent their ideas, to claim their piece of the ownership pie, Richard Stallman, founder of the GNU project, believes that software should be free.  Not free as in without cost, but freely accessible, without IP constraints. On the GNU site, Stallman shares a page devoted to "fighting software patents" which states, “Software patents are the software project equivalent of land mines: each design decision carries a risk of stepping on a patent, which can destroy your project.”  Stallman continues by sharing his view on the importance of changing the patent system so it cannot threaten developers of software. Larry Lessig, Professor of Law at Stanford Law School, states, “Every method of doing business in cyberspace by definition is instantiated in technology: code. So every method in principle becomes subject to a patent.”  As the debate between IP proponents and self-proclaimed "freedom-respecters" rages around us, we must all consider the costs to the creative process associated with patents, and make educated determinations as to whether those costs outweigh the benefits of IP protection.