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:- 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.
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).
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Filed Under: defend innovation, eff, software patents
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"Internet user"
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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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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Neutrality
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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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A plug for independent invention
(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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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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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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EFF and patent reform
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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a case of black and white
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a good start
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