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85 Tex. L. Rev. 1579 (2006-2007)
Software Patents, Incumbents, and Entry

handle is hein.journals/tlr85 and id is 1595 raw text is: Texas Law Review Volume 85, Issue 7, June 2007 Symposium Software Patents, Incumbents, and Entry John R. Allison,* Abe Dunn** & Ronald J. Mann*** I. Introduction Software patents have been controversial since the days when software referred to the crude programs that came free with an IBM mainframe. Different perspectives have been presented in judicial, legislative, and administrative fora over the years, and the press has paid as much attention to this issue as it has to any other intellectual property topic during this time. Meanwhile, a software industry developed and has grown to a remarkable size, whether measured by revenues or profitability, number of firms or employees, or research expenditures. The scope of software in- novation has become even broader, as an increasing number of devices incorporate information technology, requiring modem manufacturing firms outside the software industry to employ developers and programmers to en- sure that increasingly diverse functions are performed more efficiently. Although inventors have consistently asserted their need for patents in order to compete with industry incumbents, patent protection has not been easily or consistently available for much of this period. Rather, the legal system has responded gradually to the burgeoning software industry by broadening the scope and strength of protection for software-related inven- tions in fits and starts. The explosive growth of the industry is largely attributable to demand generated by the efficiency of software solutions; the expansion of the venture capital industry over the same period largely * Spence Centennial Professor of Business Administration, McCombs School of Business, University of Texas at Austin. ** Economist, U.S. Department of Justice. Ben H. & Kitty King Powell Chair in Business and Commercial Law and Co-Director, Center for Law, Business, and Economics, University of Texas School of Law. We thank for comments Rosemarie Ziedonis as well as participants at the Frontiers of Intellectual Property Conference. The views expressed are not those of the U.S. Department of Justice. © 2007 John R. Allison, Abe Dunn & Ronald J. Mann.

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