In a recent study "The market value of patents and R&D: Evidence from European firms" for the Centro di Ricerca sui Processi di Innovazione e Internazionalizzazion (CESPRI), Hall, Thoma and Torrisi examine a sample of European companies from various sectors for the market value of the patents they hold. Hall is a well known economist in this area.
In face of the software-patent directive and EPLA discussions they pay special attention to the value of software patents. Their results?
Our analysis shows that software patents have no impact on the firm market value
And why might this be the case?
It is possible that the market anticipates that software patents in particular are mostly used for strategic reasons rather than signalling the outcome of real inventive activity. The concentration of these patents among hardware firms suggests this hypothesis. Sample firms like Siemens, Alcatel or Thomson may decide to patent their software to prevent litigation and in reaction to the large number of EPO software patents held by large, established non-European competitors like IBM, Canon and Sony. The limited value of software patents may also indicate that the financial market accounts for their weak enforceability due to the legal ambiguity about software and CIIs patentability.
Software companies don't use them much:
In this setting, the insignificant share of software firms in software patents suggests that most software firms or newly formed firms are not using patents to protect their inventions.
There is also a new theoretical paper by R. Pollock "Cumulative Innovation, Sampling and the Hold-Up Problem" for the Danish Research Institute for Idustrial Dynamics. He concludes from his model that, because of advances in information and communication technology, less patenting would be better in general, and for software in particular:
Thus, technological change which reduces the cost of encountering and trialling new 'ideas' should imply a reduction in the socially optimal level of intellectual property rights such as patents and copyright. A perfect case of such technological change in recent years can be found in the rapid advances in computers and communications. These advances have, for example, dramatically reduced the cost of accessing and re-using cultural material, such as music and film, as well as greatly increasing the number of 'ideas' that a software developer can encounter and trial.