The US patent system is a mess. One way to fix it is to abolish software patents.
That is by far the most incendiary proposal the Electronic Frontier Foundation offers in its comprehensive report on overhauling a painfully broken patent system. The report, two years in the making, suggests everything from strengthening the quality of patents to making patent litigation less costly. And there, on page 27 of the 29-page report, is "Abolish software patents."
The argument is that software patents may not just be flawed, but utterly unnecessary. This hasn't always been EFF's stance on patents, says Adi Kamdar, one of the report's authors. But as the group compiled the report, it received 16,500 public comments from people in the business, academic, and policy communities. The idea that patents should be eliminated entirely was a common theme.
"A big chunk of the engineers we talked to, and even some of the lawyers and activists and policy folk don't like software patents at all," Kamdar says. "They said it hinders their innovation flows when they think about creating new things, and the idea of operating in a patent minefield really hurts them."
And so the EFF came around to the idea that, at the least, Congress should commission a study to determine if software patents should exist to begin with. That is not as crazy as it may seem. As the report notes, New Zealand---albeit a country with a comparatively tiny tech community---recently amended its laws to prevent patenting software. And Kamdar adds that patents haven't always been such an integral part of the software world. Microsoft, for one, acquired just five patents in its first 15 years, during which it became a $1 billion company. Today, Microsoft applies for 2,000 to 2,500 patents annually.
"It's a peer pressure, all-the-cool-kids-are-doing-it system right now," say Kamdar. "As soon as one company starts acquiring patents everyone else thinks they need to for defensive purposes. That puts pressure on the whole system."
The problem is, unlike with other types of patents, software patents often cover every solution to a certain problem, rather than a specific solution, with a specific implementation. That leads to an abundance of vague, broad patents, so that even when smaller companies do acquire patents, they're unlikely to do them any good against a patent troll. And so, Kamdar says, many of the startups EFF talked to over the course of its research are operating as if patents can't protect them anyway, and forgo them altogether.
And so, if software patents were to disappear, Kamdar believes not much would change, except that patent trolls would lose their power, and large companies like Apple wouldn't have to keep paying them hundreds of millions of dollars for infringing on decades-old, overly broad patents.
Of course, Kamdar acknowledges that convincing Congress to take up such a controversial and fundamental reform would be "a heavy lift." Which is why he says, in the mean time, there are steps that the business community should be taking to obviate the software patent system.
For starters, they could sign the License on Transfer agreement, which says that in the event that they sell their patents to a third party, every other company in the License on Transfer network would receive a license for those patents. That would keep patent trolls from attacking other companies in the network. While that wouldn't stop patent trolls from defending their existing patents, it would prevent them from getting their hands on more of them. "It’s a tiny step," Kamdar says, "but it’s a good step."
Kamdar would also like to see more members of the tech community commit to using patents only defensively. If that sounds like a lot to ask, the EFF says tech companies should remember that in many ways, they have brought this patent nightmare on themselves by selling patents to trolls and proliferating bad patents to begin with.
Still, Kamdar says these are only temporary fixes to a much bigger problem, which is why EFF believes Congress should take the time to study software patents and whether the benefits can ever outweigh the issues. "There’s probably not a lot of political support for that, but it's something that we need to do," he says. "I think it’s healthy to say, 'The system doesn't seem to be working for everyone right now. Let's take a look at whether or not it should exist at all.'"
