EFF Launches 'Defend Innovation' Site In An Attempt To Fix Software Patents

from the will-it-work? dept

The folks over at EFF have launched a new site called DefendInnovation.org that seeks to get people to speak up about fixing the patent system, specifically around software patents. It puts forth a series of key suggestions:
  1. A patent covering software should be shorter: no more than five years from the application date.
  2. If the patent is invalid or there's no infringement, the trolls should have to pay the legal fees.
  3. Patent applicants should be required to provide an example of running software code for each claim in the patent.
  4. Infringers should avoid liability if they independently arrive at the patented invention.
  5. Patents and licenses should be public right away. Patent owners should be required to keep their public records up-to-date.
  6. The law should limit damages so that a patent owner can't collect millions if the patent represented only a tiny fraction of a defendant's product.
  7. Congress should commission a study and hold hearings to examine whether software patents actually benefit our economy at all.
To me, number four is the key one and would fix a large number of issues with the patent system. I've been arguing for an independent invention defense for years. In fact, I'd take it slightly further. Since patents are only supposed to be granted on ideas that are non-obvious to those who are skilled in the art, the fact that there is independent invention suggests evidence that it is obvious to those skilled in the art, because multiple "skilled in the art" practitioners are arriving at the same obvious conclusion. Thus, such patents should be invalid, beyond just allowing the independent inventor a defense.

Some don't think the EFF is going far enough. Tim Lee put together a petition, asking the EFF to go even further and oppose software patents altogether. You could argue that point number seven gets towards that. In fact, you could argue that point number seven should be the whole ballgame here. The fact that we don't have any evidence that software patents benefit the economy should make the whole system a mockery. Either way, the EFF's response to the whole "abolish software patents" issue, is that there needs to be a first step:
Regardless of whether you think software patents should be abolished altogether or just reformed, the first step is recognizing that a one-size-fits-all patents system doesn’t make sense and that we need to treat software patents differently from other types of patents. Without that, no effort – whether reform or abolition – can be successful.
To be honest, as bad as software patents can be, I still do worry about hardware patents as well. So I don't think we should lose sight of the independent invention defense (or independent invention as evidence of obviousness) as a useful tool to fix many of the larger problems with the system. There are some other potential fixes out there as well, including something akin to an anti-SLAPP law for patents -- where it's clear that the lawsuit is an abuse of the patent system, just to try to get a company actually producing a product to pay. A big part of the problem today is how expensive a patent lawsuit is, and how difficult it is to get one dismissed without first having to spend upwards of a million dollars (no joke). That leads many companies to settle. This is, obviously, what point number 2 in the Defend Innovation campaign is about, but getting faster, anti-SLAPP-like dismissals would be a big help as well, as no company wants a big expensive lawsuit hanging over them.

Either way, it's good to see renewed emphasis on the problems of the patent system, especially after Congress and President Obama pretended that they'd "fixed" everything last summer with the patent reform bill that did very little (and probably made some things worse).


Reader Comments (rss)

(Flattened / Threaded)

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    Anonymous Coward, Jun 20th, 2012 @ 3:49pm

    Totally off-topic, but the fuck is this at the bottom of my screen and how do I get rid of it? Or at least minimise it..

     

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    Anonymous Coward, Jun 20th, 2012 @ 4:19pm

    "Internet user"

    A bit offtopic, but:

    Each comment on these proposals has a set of "tags" for the commenter, things like "Patent owner" and "Software developer". One of these tags is "Internet user".

    ...if you are NOT a "Internet user", how in the world are you commenting there then???

     

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    Anonymous Coward, Jun 20th, 2012 @ 5:56pm

    #3 and #6 are sorely needed like yesterday.

     

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    Anonymous Coward, Jun 20th, 2012 @ 7:44pm

    Tim Lee wrote an article about this on Ars Technica that, for some reason I can't fathom, doesn't link to the same petition as is linked on this TechDirt article.

    http://arstechnica.com/tech-policy/2012/06/opinion-eff-should-call-for-the-elimination-of-softwa re-patents/

    In lieu of a petition specifically, he links to Defend Innovation https://defendinnovation.org/ Which has a quasi petition that will be delivered to Congress, not the EFF.

    Why the discrepancy?

     

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    Scott (profile), Jun 20th, 2012 @ 8:20pm

    Neutrality

    #4 is what I like to call Idea Neutrality, or just Neutrality. Idea Neutrality says it's ok to infringe on someone's patent as long as it's innocent -- no plagiarism.

     

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    Anonymous Coward, Jun 20th, 2012 @ 9:49pm

    The 7 recommendations are followed by 3 paragraphs. The 1st encourages people to sign the EFF's petition, which is provided on the page. The 2nd states the EFF's willingness to meet with groups concerning its recommendations, and includes a link. The 3rd solicits input from those persons who are hopefully intimately familiar with all aspects of patent law and the patent system. Remarkably, there is no link on the page for such persons to provide comments in response to this solicitation.

     

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      Anonymous Coward, Jun 20th, 2012 @ 10:27pm

      Re:

      There are comment links; they're just threaded by item. Click an item, either on http://defendinnovation.org or in the Techdirt article, and you can post comments on the specific item.

      Of course, this won't let you suggest adding an eighth item, but at least you can comment on the 7 items they provide.

       

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    mlang (profile), Jun 21st, 2012 @ 12:21am

    Wouldn't it be a good idea to require that any patent that is to be used in legal proceedings must be peer reviewed any such proceedings take place? It would reduce legal fees.

     

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    Anonymous Cowherd, Jun 21st, 2012 @ 12:45am

    Independent invention defense is basically the same as removing software patents entirely. To avoid liability, nobody would ever so much as look at anyone else's patents.

     

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      Andrew F (profile), Jun 21st, 2012 @ 5:05am

      Re:

      Not necessarily. If patents were actually useful, you would look. Suppose you estimate that it'll cost you $1000 to clean-room develop something you suspect is copied. If the patent holder offers to license for $900, it makes sense for you to license.

       

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    Andrew F (profile), Jun 21st, 2012 @ 5:16am

    A plug for independent invention

    Independent invention gets a lot of flack because of how difficult it is to prove actual copying. I commented on the EFF site explaining how you could get around that (https://defendinnovation.org/proposal/relax-liability-infringers#comment-38), but the short version is this:

    (1) Hard-to-prove claims aren't new to the legal system. We deal with them by making presumptions (e.g. if you had could have read a patent, we assume you did read the patent, unless you prove otherwise -- e.g. by using computer forensics).

    (2) Allow partial damages or partial fault. In real life, things are never fully dependent or independent. This allows you to deal with situations where a defendant benefited by reading the first paragraph of the patent but worked out the rest on his own.

     

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    Anonymous Coward, Jun 21st, 2012 @ 5:32am

    One thing that's always confused me. If I'm a software designer, and I create a new program, I can patent the methodology, AND copyright the source code? Is this double coverage really necessary?

     

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      Anonymous Coward, Jun 21st, 2012 @ 5:54am

      Re:

      Not only CAN you copyright the source code, you DO, automatically, and generally without the option not to.
      There's an excellent license which allows you to forswear all rights and benefits, but your code is still copyrighted until decades after you are dead.

       

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    shawnhcorey (profile), Jun 21st, 2012 @ 6:11am

    All software patents are illegal. Where does the EFF get off on legitimizing them?

     

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    Steve R. (profile), Jun 21st, 2012 @ 8:59am

    No to Software Patents

    My problem with the EFF proposal is that is acknowledges the existence of this type of patent. This starts the whole line of slippery slope arguments that the patents have to be "strengthened" to protect the patent holder. NO to software patents.

    A second issue that requires further review is that there can only be "one" patent holder. We live in a world economy with a world population in excess of 6 Billion people. Given that, many people can "invent" the same thing. If that is the case there should be NO patent or at least a shared patent.

    Finally, any patent that is issued must be supported by a real device with real blueprints. A third party should be able to take that blueprint and construct that device. If they can't then NO patent.

     

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    Dementia (profile), Jun 21st, 2012 @ 9:02am

    I personally think all patents should be limited to 5 years, and the same with copyright. In this day and age, if you can't monetize it within five years, you aren't going to be able to at all.

     

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    Gene Cavanaugh (profile), Jun 21st, 2012 @ 11:16am

    EFF and patent reform

    As an IP (aka patent) attorney and former software engineer, I totally agree (though I favor abolishing software patents altogether).
    I will point out, though, that an even bigger immediate problem is the decision by Congress to make the USPTO not only self-supporting, but highly profitable. The present patent administration is doing that by making individual Examiners responsible for "revenue vs performance", code for "pay me enough, and you can patent ANYTHING, otherwise, GET LOST!"
    This will cause horrible patents to be issued, so long as the patent owner can pay enough!

     

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    bshock, Jun 21st, 2012 @ 5:39pm

    a case of black and white

    "Fixing software patents" is a bit like "fixing cannibalism" -- the only meaningful solution is abolition.

     

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    patent litigation, Jun 26th, 2012 @ 10:09am

    a good start

    I think these suggestions are good ones, especially the first 2 provisions. I don't believe that eliminating software patents altogether i necessary or desirable. All the same, I would support an independent study of the question.

     

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