EFF Outlines Plan to Fix the Broken Patent System

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.

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

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).

Could pharma companies pay an R&D tax into a shared pool issued as research grants by the NIH, with a quasi-market for allocating research funds? That way non-researching manufacturers of generics still contribute to new drug research -- no freeloading.