The patent system is broken.
Patents may have been created to help encourage innovation, but instead they regularly hinder it. The US Patent Office, overwhelmed and underfunded, issues questionable patents every day. “Patent trolls” buy too many of these patents and then misuse the patent system to shake down companies big and small. Others still use patents to limit competition and impede access to new knowledge, tools, or other innovations.
It’s no wonder that small businesses and individual inventors find it almost impossible to make the patent system work in their favor, often leaving them without any defense against competitors with giant patent arsenals and litigation budgets.
Below, we explain these problems in more detail, and why we believe it’s time to start over. Patents are supposed to help encourage the development and sharing of new technologies. In the coming months, we will be rolling out a set of new tools and techniques that we believe can help shift the patent system in the right direction.
EFF has always stood up for the freedom to tinker and the right to innovate. It’s time the patent system did the same. That's why EFF is launching a new campaign around patents—Patent Fail: In Defense of Innovation. Check back here for updates.
The Patent Office Can’t Stop the Flood of Bad Patents
The U.S. Patent Office, tasked with making sure patents are only granted to genuine inventions, is failing in this essential task. The result: a flood of bad patents on so-called inventions that are unoriginal, vague, overbroad, and/or so unclear that bad actors can easily use them to threaten all kinds of innovators. This is particularly true with software patents where inventions can be as abstract as a single-click to purchase a book or the idea of sorting your friends on Facebook into groups.
As we showcased in our Patent Busting Project, patents have been issued to basic technologies like:
- Sending and receiving of streaming audio and video over the Internet
- All VoIP systems
- Real-time, multiple-player games
- Using a network to look up barcodes
Each of these serves as a cornerstone for a wide range of different technologies, and their overbroad claims, can easily be used to threaten the healthy competition we rely on to spur companies and technologists to experiment and out-innovate one other.
Some bad patents—like a patent on hyperlinks—have been struck down or narrowed, yet the process of fighting a bad patent is expensive and can take years. Many small business owners and innovators can’t afford a lengthy legal battle in the courts or at the Patent Office.
This leaves us with an untold number of bad patents, many of which represent 20 years of troublesome lawsuits, licensing fees, and stifled innovation. The people who most benefit from a system like this are patent attorneys, not inventors.
Patent Trolls Prey on a Broken System
Patent trolls have made the patent problem much worse. Patent trolls, entities that do not create, invent, or sell anything useful, instead acquire patents solely to threaten folks who might be using technologies related to the patents. Faced with the prospect of expensive litigation, the victims—including small businesses, independent developers, and nonprofits—are forced to pay exorbitant licensing fees rather than battle the issue in court.
We saw a striking example of this in 2011, when patent troll Lodsys launched an aggressive campaign against scores of app developers. Lodsys, a company devoted to acquiring patents and then threatening entrepreneurs who allegedly may infringe those patents (usually unknowingly), sent letters to many app developers accusing them of infringing patents dating back to the early 1990s. Those patents allegedly cover the in-app purchasing and upgrade functionality that companies like Apple and Google provide to developers as part of their operating system. Lodsys is the last in a long line of owners of the patents, far removed from—and likely providing little or no revenue to—their original inventor. Rather than fostering new inventions, patent trolls like Lodsys make a business out of aggressive lawsuits targeting developers.
Unfortunately, in the worst instances, small companies that can’t afford excessive licensing fees or a lengthy court battle just go out of business. But even those companies who can afford to take a license are faced with a pernicious tax on innovation.
Patents Put Pressure On Small Businesses, Nonprofits, and Independent Innovators
Faced with competitors eager to deploy giant patent arsenals as competitive weapons and patent trolls whose entire business model depends on extracting settlements, many small businesses feel obliged to fight back by amassing a few patents of their own—whether or not they really need the protection of a limited monopoly. In either event, it can cost between $5,000 and $20,000 per patent to obtain that protection, and take months or even years before an application is approved. And, obtaining a patent is far from a consumer-friendly process; a small business almost always has to hire a patent attorney to file the necessary paperwork if they hope to successfully receive a patent.
Having obtained the patent, however, a small business may be hard-pressed to assert or defend it in court. Patent litigation is an arduous, expensive process. Threatened by a troll or a competitor with a bigger budget, a business may be left with little choice but to pay out a licensing fee.
Ultimately, money spent to pursue unnecessary patents, and/or manage improper patent lawsuits amounts to a tax on companies, inventors and the economy. That money would be better spent on the valuable work of creating, producing, distributing, and promoting real innovations.
Innovators Are Already Abandoning the System
Given all of these problems, it’s not surprising that many of today’s inventors are choosing to opt-out of the patent system. Software developers have led the way: indeed, many in the Free and Open Source Software (FOSS) movement, for example, argue forcefully that software patents should be abolished. FOSS developers are creating new software (and often giving it away for free) without trying to slap on legal protections for their work or stop others from using it and innovating on top of it. And it's not just the FOSS community. Engineers and innovators across the board recognize the danger of software patents.
While compelling, there are risks to this strong approach. Every piece of software released to the world without legal protections may leave open a door for someone else to attempt to patent the same technology (and may leave its creators more open to legal threats without a patent to wield defensively). Such a scenario may result in years wasted in litigation and the existence of a patent used as a sword to scare away further innovators
We Need a Real Solution
The system of patents as it currently stands, especially in the world of software, is unsustainable. We need a patent system that actually fosters innovation—or at least, one that gets out of the way. That's why EFF has launched Defend Innovation. This campaign suggests 7 proposals to address the most egregious problems with the software patent system and solicits the opinions of Interenet users for their thoughts about software patents and ideas for addressing the problem. Please visit the site and share your thoughts.
EFF Related Content: Patents
- Overturning the Supreme Court Decision Would Allow Abstract Patents to Hurt innovation One of the most important cases to cut back on the availability of vague, abstract patents was the 2014 decision Alice v. CLS Bank . In Alice , the U.S. Supreme Court reaffirmed the...
- With all the attention ride-sharing has been getting lately, some might think Uber and Lyft were highly inventive apps. But according to at least one company, the apps are just highly infringing. Who’s right? Probably neither. Hailo Technologies, LLC (“Hailo”) has recently sued both Uber and Lyft, alleging they infringed...
- San Francisco—The Electronic Frontier Foundation (EFF) filed a lawsuit yesterday against a company that’s using foreign laws to stymie EFF’s free speech rights to publish information about and criticize its litigation over a patent featured in EFF’s “Stupid Patent of the Month” blog series. The company,...
- Date:Thu, 04/13/2017
- Date:Thu, 04/13/2017
- Our ongoing Reclaim Invention campaign urges universities not to sell patents to trolls. This month’s stupid patent provides a good example of why. US Patent No. 8,473,532 (the ’532 patent), “Method and apparatus for automatic organization for computer files,” began its life with publicly-funded Louisiana...
- Today, the Supreme Court heard arguments in a case that could allow companies to keep a dead hand of control over their products, even after you buy them. The case, Impression Products v. Lexmark International , is on appeal from the Court of Appeals for the Federal...
- This patent case raised the question of whether the defense of laches is available in patent litigation. Laches is a legal doctrine that says rightsholders can't sit on their rights. It protects defendants who are prejudiced by long delay (for example, by investing heavily in a product while the patent...
- Last year, EFF, along with our partner organizations, launched Reclaim Invention , a campaign to encourage universities across the country to commit to adopting patent policies that advance the public good. Reclaim Invention asks universities to focus on by bringing their inventions to the public, rather...
- Date:Mon, 02/06/2017
- The Supreme Court already has a list of digital civil liberties issues to consider in the near future, and that list is likely to grow. If confirmed, President Donald Trump’s nominee to fill the late Justice Antonin Scalia’s seat on the Supreme Court—Judge Neil Gorsuch of the U.S. Court of...
- TC Heartland v. Kraft Foods is a case that effectively asks the court to decide whether patent owners can sue in practically any corner of the country. The current law allows patent owners to pick and choose between federal courts, often opting for courts that are perceived to have rules...
- If printer maker Lexmark International prevails against ink cartridge reseller Impression Products, tech giants and other American companies will gain the ability to control products through patent claims after they have been sold. Daniel Nazer, staff attorney at the Electronic Frontier Foundation and Mark Cuban Chair to Eliminate Stupid Patents,...
- If printer maker Lexmark International prevails against ink cartridge reseller Impression Products, tech giants and other American companies will gain the ability to control products through patent claims after they have been sold. Daniel Nazer, staff attorney at the Electronic Frontier Foundation and Mark Cuban Chair to Eliminate Stupid Patents, said in a phone interview with The Register, "There's a risk companies will increasingly turn to patent law to do things they're not otherwise allowed to do."