Legal Newsline

Monday, August 19, 2019

Software patents at center of abuse problem, report says

By Jessica M. Karmasek | Mar 6, 2015

SAN FRANCISCO (Legal Newsline) - The Electronic Frontier Foundation argues in a new report that the U.S. Patent and Trademark Office is issuing too many weak and overbroad patents -- in particular, software patents.

EFF, a California-based international nonprofit, advocates for digital rights.


Its Defend Innovation whitepaper, which was released last week, is the culmination of more than two years worth of research by the foundation.


EFF said it interviewed more than 16,000 people for its 37-page report, which, split into two parts, covers both the challenges facing innovators under the current system and the measures policymakers should take this year.


The foundation argues there are “clear steps” both Congress and the White House can take to mitigate the impact of so-called “patent trolls,” vague patents and a weak legal process to better protect competition and creativity.


“Fixing the current patent mess will require concerted action, but it can be done,” said Daniel Nazer, EFF staff attorney and the Mark Cuban Chair to Eliminate Stupid Patents. “Now, more than ever, there is both the need and the will for real and lasting reform.”


EFF, in its report, contends that software patents, especially, combined with an “insufficient” review process by the PTO, have hindered innovation and created an environment “ripe for abuse” by trolls.


The explosion in software patents also has led to a patent “arms race,” in which companies acquire broad patents for defensive purposes, according to the report.


“The U.S. Patent and Trademark Office is issuing far too many weak and overbroad patents, particularly on software,” EFF Staff Attorney Vera Ranieri said.


“Instead of promoting innovation, these patents become hidden landmines for companies that bring new products to market.”


Among its proposed solutions, EFF argues Congress needs to pass a comprehensive patent reform bill, such as the Innovation Act, that includes a fee-shifting provision. It also calls for ending the U.S. Court of Appeals for the Federal Circuit’s exclusive jurisdiction over patent cases.


“Limiting patent appeals to one court limits the ‘marketplace of ideas’ in patent law,” the report states. “But by allowing different circuit courts to hear and decide patent cases, we are more likely to hear competing viewpoints on how the law should develop. This is not a bad thing.”


EFF, in its report, also calls on private companies to adopt alternative patent licensing schemes that can help prevent patent abuse.


“All three branches of government, as well as individuals and companies, have a part to play when it comes to patent reform,” EFF Activist Adi Kamdar said. “Right now, we need legislation that clamps down on litigation abuse by patent trolls and bad actors, and empowers those on the defensive end of frivolous lawsuits to fight back swiftly and cheaply.”


From Legal Newsline: Reach Jessica Karmasek by email at patents@legalnewsline.com.

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