
EFF Outlines Plan to Fix the Broken Patent System - DiabloD3
https://www.eff.org/press/releases/eff-outlines-plan-fix-broken-patent-system
======
rayiner
Most of these are really excellent, such as the suggestion to require example
code for claims implemented in software, to allow the regional courts of
appeal to decide patent cases, and to defer most discovery until after claim
construction.

On the other hand, some of the suggestions simply beg the question. What is a
"software patent" or a "patent troll?" Software is eating the world--
mechanisms that would have in the 1990s been implemented in ASICs are
implemented in microcontrollers. What people think of "software" they think of
typical application code that mostly moves bits from point A to point B or
react to user input. Software where each individual line of code is
straightforward and requires little thought. An R&D project might spend
millions of dollars to write a bunch of code that will be thrown away--and can
still be considered successful if it yields useful algorithms. These are
qualitatively different kinds of software, but it's devilishly difficult to
draw the line.

Of course the easy solution is to eliminate software patents. I'm not
convinced that's a good thing long-term. I look at the tech industry, and see
one where product companies rather than hard R&D companies make all the money.
The folks at SRI who invented Siri get a small license fee, while Apple makes
billions by wrapping it with a candy shell. It's an industry where there is
tremendous pressure to vertically integrate, because you can only justify R&D
on basic technologies if you also control the product that gets sold to end-
users.

~~~
Alex3917
> What is a "software patent" or a "patent troll?"

Patent trolls are Non Practicing Entities who file lawsuits against companies
who are actually practicing an invention. The problem though is that when the
United States was created, it chose to drop the requirement to practice for a
very specific reason: it discriminates against the poor and middle class, who
might be smart enough to invent some world changing technology but have no way
to raise millions of dollars to produce their invention. Such a requirement
was seen as anti-democratic by the founding fathers, and historically NPEs
have actually made huge contributions to human knowledge... E.g. the person
who invented the computer didn't have the money to actually go out and build
one.

There certainly have come to be a lot of abuses with the current system that
need to fixed. But it's worth keeping in mind that while Mark Cuban himself
might not be a bad guy, the reason the founding fathers chose to let people
file patents without having to build out the invention was precisely to
protect us from people like him, who could come in and just steal someone
else's efforts wholesale because they happen to have more money. And in the
past couple years, a lot of law professors who were originally against NPEs
have now reversed their opinions and acknowledged that the situation is more
complex than they had originally believed.

~~~
zipfle
Citation needed. Specifically, the patent office required that inventors
submit working models of their inventions until 1880 [1]. That doesn't sound
to me like the founding fathers' decision.

Edit: And they still require working models of anything claiming to implement
perpetual motion.[2]

[1]
[http://www.nytimes.com/2002/02/18/business/18PATE.html?pagew...](http://www.nytimes.com/2002/02/18/business/18PATE.html?pagewanted=all)

[2]
[http://www.uspto.gov/web/offices/pac/mpep/s706.html](http://www.uspto.gov/web/offices/pac/mpep/s706.html)

~~~
pbhjpbhj
> _And they still require working models_ //

Sorry, can you perhaps quote the bit that says that. In that link I see they
reject perpetual motion machines under 35 USC 101 but I don't see the part
saying that such an objection can be combated with presentation of a model, or
indeed that the objection is made in a form of "submit a working model to
continue this application".

The USPTO likely has no facilities to examine or even store such models.

------
zanny
The solution to the patent system is to abolish it. The whole thing. Seek
compensation for the act of coming up with innovative ideas instead of trying
to apply artificial state granted monopolies to them after the fact. It would
be so much healthier to have money pumped into the R&D of common utility goods
for the sake of the innovation than to continue to perpetuate patent warfare
while trying to attach a flawed profit motive to intellectualism.

~~~
rogerbinns
The usual retort to that is "so you don't want to cure cancer then". The
pharmaceutical industry very strongly depends on patents, and would easily be
able to convince government through money and "cancer" not to abolish it.

The practical thing then is to come up with a solution for pharma, and then
abolish the patent system.

~~~
wbillingsley
The patent system is very badly designed for pharma. The cost in pharma is in
the clinical trials, but the patent is awarded for creating the drug -- long
before the trials.

Rather than being a reward for brining an innovation to market, the monopoly
(patent) is awarded long before the bulk of the work has been done. No reward
is offered in the patent system for doing the hard and expensive part --
proving efficacy and safety. But the patent means that even if you choose not
to spend the money to bring it to market, nobody else is allowed to.

Something like 95% of pharmaceuticals fail to be effective and safe. In other
words, 95% of pharmaceutical patents are for inventions that ultimately don't
work.

"A patent for something that does not work" ought not be allowed -- the
pharmaceutical patent should only be awarded after efficacy and safety has
been proved (incentivising the hard part).

~~~
suvelx
What's to stop the FDA enforcing 'patents' and market exclusivity in their
approval process? I.e. Instead of approving Chemical-X, approve only DrugCorp
brand Chemical-X?

Possibly with some stipulation that the first company to submit and pass
approval gets a N-year exclusivity.

------
cletus
I'm disappointed by the EFF's stance here: it simply isn't strong enough.

I'm in the camp that believes there shouldn't be software patents _period_.
Simple as that.

As for ending the exclusive jurisdiction of the Federal Circuit Court of
Appeals on patent case appeals, I assume this is because that court has
frequently been overly friendly to patent plaintiff claims. Some might argue
it's gone so far as regulatory capture. What's more, the court has repeatedly
been overturned by the SCOTUS.

That's a fair argument but what they're forgetting was that the USCoAftFC was
introduced to solve a problem. We have the problem now that there is
inconsistent treatment of patent cases in Federal district courts, leading
plaintiffs to file cases in "friendly" jurisdictions, most notably East Texas.

Prior to 1982, you had the same problem at the appeals level and you had a
rush to file appeals in friendly jurisdictions. This court was certainly
_intended_ to provide consistent treatment of patent cases and--ideally--allow
for experts in patent law to handle such cases.

But the fact that this court has really had trouble finding a patent they
didn't like is a sideshow: the real problem here is software patents.

You can't patent a mathematical formula and as anyone with any kind of
Computer Science education could tell you, an algorithm is essentially
indistinguishable from a mathematical function. The fact that the US courts
have ignored this or simply been unable to comprehend it is at the root of the
problem.

~~~
xroche
This is what is supposed to be true in Europe: software "as such" can not be
patented. The issue we have is that corrupted patent organizations such as the
EPO twisted the "as such" so much that they managed to reverse the original
meaning (ie. you can not patent a software "as such", but patenting its use
inside of a computer is legit - I love lawyers)

------
omgitstom
Man - this guy might have the best title I've seen in a while:

Daniel Nazer Staff Attorney and the Mark Cuban Chair to Eliminate Stupid
Patents Electronic Frontier Foundation daniel@eff.org

~~~
tzs
Is that usage correct? Shouldn't he be described as the holder of the Mark
Cuban Chair to Eliminate Stupid Patents, rather than being described as the
Mark Cuban Chair to Eliminate Stupid Patents?

Also, every time I read about the Mark Cuban Chair to Eliminate Stupid Patents
I have a mysterious urge to watch "Zoolander".

~~~
schoen
The usage "is the ____ Chair" as opposed to "holds the ____ Chair" isn't that
uncommon in the academic world (treating the Chair as a unique title, rather
than only a position). A few random examples from Google:

[https://www.design.upenn.edu/city-regional-
planning/graduate...](https://www.design.upenn.edu/city-regional-
planning/graduate/people/eugenie-l-birch) Professor Birch is the Lawrence C.
Nussdorf Chair of Urban Research and Education.

[http://www.thelancet.com/lanres/advisory-
board](http://www.thelancet.com/lanres/advisory-board) Professor Klugman is
the William H Foege Chair of Global Health at Emory University, Atlanta, GA,
USA.

[http://www.bahaipeacechair.umd.edu/events/apr29-2015](http://www.bahaipeacechair.umd.edu/events/apr29-2015)
Professor AMITAV ACHARYA is the UNESCO Chair in Transnational Challenges and
Governance and is Professor of International Relations at the School of
International Service, American University, Washington, D.C.

[https://www.law.louisville.edu/faculty/interdisciplinary-
cir...](https://www.law.louisville.edu/faculty/interdisciplinary-circle)
Professor Tony Arnold is the Boehl Chair in Property and Land Use.

[https://www.american.edu/provost/human-rights/Faculty-
SIS.cf...](https://www.american.edu/provost/human-rights/Faculty-SIS.cfm)
Professor Ahmed is the Ibn Khaldun Chair of Islamic Studies who studies
American society through the experiences of the Muslim community.

------
k-mcgrady
How do other countries patent systems compare with the US'? Can inspiration
for changes be drawn from them or are they just as bad/worse? I ask because I
only ever hear of trolling in the US system.

~~~
transfire
I know of one important distinction between the US and India with regards to
medicine patents. In India you can only patent the means of making a medicine,
not the medicine itself. So if you can come up with a substantially different
way of making the same thing you have equal rights to it.

~~~
rayiner
This is a good law for India, because they have the capability to manufacture
medicine, while lacking the capability to invent them. It's one of the many
ways the world freeloads on U.S. medical R&D spending.

~~~
rofl1234
> lacking the capability to invent

citation needed

~~~
rayiner
New drug development in India is in its infancy:
[http://www.rsc.org/chemistryworld/2014/09/piramal-exits-
drug...](http://www.rsc.org/chemistryworld/2014/09/piramal-exits-drug-
discovery-india)

("This admission reflects the view that Indian drug companies are finding it
difficult to develop successful new molecules. Discovering new drugs requires
huge investment, and has not been favourably looked upon by risk-averse Indian
investors. Several Indian molecules have failed in the clinic, including
Piramal’s head and neck cancer candidate P276 in 2012. Even the antimalarial
Synriam (arterolane and piperaquine), which Ranbaxy hailed as India’s first
domestically developed drug, was originally discovered elsewhere.")

------
transfire
This doesn't really go far enough. It's doesn't address the more basic
problems of a for-profit patent office (the USPO has been required to be self-
sustaining since Bush), nor does it address unfair practices of high upfront
and ongoing renewal costs and worse, the inherently unfair practice of being
able to buy expedited service. It is also counter productive to shorten the
time span of patents b/c it means all the money required to develop it has to
be recouped very quickly. Better to have longer periods, but with clearer and
stricter requirements for what is actually patentable.

------
yazaddaruvala
Honestly, I think the best way to get rid of this nonsense, keeping everyone
happy, is to allow patents but to enforce a "profit cap".

Basically, if an entity has invested $X into RND for patent Y, then patent Y
should be valid until some $(Z*X) has been earned by the entity. Where Z is
some constant; or stepped like tax brackets.

Example: A company develops some new software: it cost $500,000 of Engineering
effort. They are awarded a patent. The patent should be valid until that
company has earned $5 million (Z=10; ie 1000% ROI).

Example: A company develops some new drug: it cost $5,000,000,000 for RND.
They are awarded a patent. The patent should be valid until that company has
earned $50 Billion (Z=10; ie 1000% ROI).

I agree it may be hard to prove "amount spent on patent" or "profit earned
from patent". However, at least to me, it seems as hard as the IRS auditing a
company's taxes, or as hard as auditing a public companies quarterly financial
disclosures.

~~~
eCa
I think any such scheme should be based on revenue rather than profit, or else
Hollywood accounting[1] might be encouraged.

[1]
[http://en.wikipedia.org/wiki/Hollywood_accounting](http://en.wikipedia.org/wiki/Hollywood_accounting)

------
frederickf
This might be naive on my part but it seems like we could help the situation
quite a bit, at least for software patents, by just reducing the amount of
time for which new software patents are valid. It's simple, easy to understand
and implement, more consistent with the speed at which the software market
evolves, would reduce the perceived value of bogus patents making trolling
less likely, free up technology sooner for everybody to benefit and still
offer some protection to innovators.

Right now they're good for between 14 to 20 years (1) which seems too long to
me. I'm not sure what the right number is, maybe between 5 - 10? Even that
seems long, but then again I don't have anything innovations to patent so I'm
probably biased.

(1) [http://patents.stackexchange.com/questions/312/how-long-
are-...](http://patents.stackexchange.com/questions/312/how-long-are-patents-
valid)

~~~
transfire
It's not a good idea. Ideally rights should be for as long as the life of the
inventor. Instead of a cut-off time, I've heard people espouse a system of
valuation and, in some cases, taxation, so that over time a patent becomes
increasingly affordable for others to buy out and put into the public domain.

~~~
gombotzd
i have to disagree to your statement, which misses foundation.

First copyright is always a life long idea, but the focus of patents have
always been to incentivice long term research efforts that have budget
constraint by having a mid-term monopoly

problem today: a lot of trivial design-patents and even patents that are used
in the wars between big corps. as one of my advisor board state - screw that
patent, we cannot defend it anyway Behind a lot of those patents there is no
research in the sense but it rather came out of "usual" engineering.

i think that the proof of non-trivial has to be a part of the application and
is better suited than discussion about life-time - because patents could still
have a strong point in basic-research

Problem is what to do with the already existing bogus patents - any
suggestions?

~~~
btilly
_First copyright is always a life long idea..._

Not true in the USA until Disney started twisting the law. This idea has a
longer history in Europe.

See [http://www.arl.org/focus-areas/copyright-
ip/2486-copyright-t...](http://www.arl.org/focus-areas/copyright-
ip/2486-copyright-timeline#.VOvVLUjmv0g) for a more detailed history.

------
higherpurpose
I hope that after the Alice vs CLS Supreme Court ruling EFF & Co reintroduce
the abolishing of "business method" patents, which Microsoft and IBM fought so
hard to take out of the previous bill.

[http://www.washingtonpost.com/blogs/the-
switch/wp/2013/11/20...](http://www.washingtonpost.com/blogs/the-
switch/wp/2013/11/20/software-patent-reform-just-died-in-the-house-thanks-to-
ibm-and-microsoft/)

------
Singletoned
I've often thought that a simple change would be to require you to prove that
it is in the public interest for your patent to be enforced. Patents only
exist for public benefit anyway.

I don't think that a patent troll, for example, could prove that the world
would be a better place by them enforcing their patents. If they could, then
we'd be better off letting them do it (by definition).

------
pbhjpbhj
> _If the patent is invalid or there’s no infringement, patent trolls should
> have to pay the winning party’s legal fees._ //

Wow, I can't believe award of costs isn't standard in such cases already.
Incredible.

------
aercolino
The PDF document lacks the last endnotes. 189 is the last one on page 28, but
the endnotes list stops in the middle of 167.

------
Animats
Let's look at the EFF's proposals:

 _1\. The patent term should be shorter for software patents. It should last
no more than five years from the application date._

Software doesn't move that fast. The Internet is now over 30 years old. It's
been 61 years since the first FORTRAN compiler. At various times in the past,
aircraft technology and radio technology advanced at least as fast as computer
technology. Computing is not special; it's just a currently active area.

 _2\. If the patent is invalid or there’s no infringement, patent trolls
should have to pay the winning party’s legal fees._

This provides a way for big companies to intimidate patent holders. A small
patent holder can be threatened with huge legal bills. The odds of winning a
patent infringement lawsuit are about 40-50%, and even if you have a strong
patent, it's common to lose.

 _3\. Patent applicants should be required to provide an example of running
software code for each claim in the patent._

The USPTO has the right to demand a working model if they are not convinced
the patented concept would work. At one time, they did. (Patent models are
cute collectables now.) Current USPTO policy is to demand a working model only
for things such as antigravity machines or perpetual motion machines.
Unworkable patents do not seem to be a problem in the software area.

 _4\. Infringers should avoid liability if they independently arrive at the
patented invention._

Absolutely not. Infringers will routinely lie about that, claiming independent
invention, and it's really tough to prove intent. There's a provision in
current law which allows for a defense of independent invention for, I think,
one year after patent issue. That's sufficient.

 _5\. Patents and licenses should be public upon filing. Patent owners should
be required to keep their public ownership records up-to-date._

Patent applications are already published at the 18 month mark.

 _6\. The law should do more to limit damages so that a patent owner can’t
collect millions if the patent represented only a tiny fraction of a
defendant’s product._

A patent is the right to say "no, you can't do that". Infringers aren't
entitled to practice the patent at all and then just pay damages if they lose.

 _7\. Congress should commission a study and hold hearings to examine whether
software patents actually benefit our economy at all._

The purpose of the patent system isn't to "benefit the economy". It's to
"promote the Progress of Science and useful Arts", according to the
Constitution.

As for "patent trolls", according to the EFF's own database[1], there are only
a few real "patent trolls", with one firm in Texas being the big generator of
threatening letters. The top firm has 15 letters in the EFF's database.
(They've sent more.) There are a very small number of patents being "trolled".

The EFF was arguing for this in the previous session of Congress. Once it came
out how weak their case was, the legislation was dropped.

[1]
[https://trollingeffects.org/lawfirms](https://trollingeffects.org/lawfirms)

