EFF taking on software patent reform

This seems like a good first step.

I never understood why people think we should try and abolish software patents. We can't. Period. There's too much money in them. We can attempt to reform or reshape them so they are less destructive, but crying for total abolition seems to be akin to attempting to abolish the IRS. It might make sense in a perfect world, but it will never, ever happen.

So, good engineers know what happens if you try to just take a complex system and change everything at once, instead of incrementally. Certainly government does (witness the number of "hey let's start from scratch and come up with a much better system" that are 10+ years overdue and many billions over budget). The RIAA/MPAA knows too (make small-medium sized changes using bills that push in the direction they want until it's death by 50 cuts).

Yet, I always see otherwise rational people wanting to just blow the patent system up. What makes you think this is a goal achievable in one step? Why isn't the EFF position a good starting point to get there eventually?

Just because the system sucks really badly doesn't mean you'll be able to change it in one fell swoop. Doing that with healthcare in the US took 20+ years, and we arguably did not end up with a better system, just a bunch of incremental improvements.

What they're doing here is good strategy.

Option A:

EFF: "Hey, legislators, you should abolish this system that we've had for decades and you don't understand. Let me tell you why the interlocking parts of a software algorithm are totally different from the interlocking parts of a car engine ..."

Patent Trolls: "This is a pie-in-the-sky proposal that would never work in practice and would undercut our economy in the one area where we're seriously dominant! [1]."

Option B:

EFF: "Hey, legislators, our economy depends on software, and patents are screwing it up. Software moves really fast, so we should limit the time a patent lasts to five years. And lots of the things that are getting patented are really obvious, so if something is so obvious that someone else invents it independently, they should be allowed to use it -- that will avoid the need for lawyers to review every single program that gets written. And software projects are often incredibly huge, so we should make it so millions of dollars won't be awarded for a violation that consists of .001% of the project. Can we hold some hearings to talk about this stuff?"

Patent Trolls: "These are pie-in-the-sky proposals that would never work in practice! Hang on while I try to come up with a reason for that."

Option B is 1000 times more likely to get us in the door. And once public hearings start and legislators actually start to have some idea what the issue is, that's our chance to make the case (in the media, through lobbying, and through testimony) that we'd be better off without software patents at all.[2]

[1] "... other than music and pizza delivery, obviously."

[2] If this is true. It's totally possible that, within the boundaries the EFF is proposing -- short-lived, open-source, non-obvious, damage-limited, subject to prior art up to 2007 -- software patents would actually become a force for good, in complex areas like compression, encryption, language processing etc. A game where highly-funded research programs are racing to stay 5 years ahead of open source projects that incorporate all their best ideas could be pretty sweet. It's worth discussing anyway.

Number 4 is a tragically bad idea: "Infringers should avoid liability if they independently arrive at the patented invention." I love the EFF (and donate) but as a litigator it appears entirely unworkable. The root problem is that this proposal commingles the standards for copyright and patents. In copyright law, independent creation means there was no copying, and thus no infringement. Patents (sw or otherwise) are entirely different and exist for different purposes. Patents protect early work done by inventors from poaching by later (or larger) entrants. The inherent tradeoff is that the inventor must disclose to the world how his invention works in exchange for receiving a limited time period of market exclusivity. (EFF #1 is spot-on that the current time period is too long for software). However, the EFF is saying "If inventors can’t understand a patent, then they, as a matter of logic, cannot copy it. Likewise, if inventors don’t know about a patent, they cannot copy it." If all inventors required was copy protection, they could rely on existing copyright law. Patent protection is important because it protects 'non-literal' duplication through the doctrine of equivalents and other established principles. Done right, a patent system should protect small inventors whose creation is groundbreaking in their industry, but that could be easily reverse-engineered or duplicated by the big players based simply on recreating the inventor's product without literal copying. TiVo vs. cable DVRs is a good example.

I agree wholeheartedly.

Slightly off topic, but there is a general modification of IPR law that I've never seen discussed but that I think could affect some very interesting change: simply require that licenses are available to all on reasonable and equal terms. For every registered patent or copyright there would also be a license template, ready to fill in, with payment details, preferably machine readable...

You could apply that principle to copyright as well as patent rights. The consequence for copyright would be e.g. that large record labels would be forced to license their music to all online services, or not at all. If the government enforces a "monopoly" then why not also enforce an even playing field?