The folks over at EFF have launched a new site
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:
- A patent covering software should be shorter: no more than five years from the application date.
- If the patent is invalid or there's no infringement, the trolls should have to pay the legal fees.
- Patent applicants should be required to provide an example of running software code for each claim in the patent.
- Infringers should avoid liability if they independently arrive at the patented invention.
- Patents and licenses should be public right away. Patent owners should be required to keep their public records up-to-date.
- 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.
- 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).