At the end of last year, patent trolls were filing more suits than ever before. At the same time, efforts to restore sanity to the patent system were in full swing. The House of Representatives had overwhelmingly passed the Innovation Act and it seemed legislative patent reform would arrive soon. That didn’t happen. Instead, the bill stalled in the Senate. While that setback was disappointing, there is still strong bipartisan interest in patent reform, and we expect that it will be back on the legislative agenda early next year.
More importantly, even without action from Congress, 2014 was a huge year for patent reform. The biggest news came out of the Supreme Court with a string of promising decisions. These included Nautilus v. Biosig Instruments where the court tightened the standards for patent clarity—making it harder for trolls to wield vague and overbroad patents. In Octane Fitness v. Icon Health and Fitness, the court made it easier for defendants that win patent cases to get their attorney’s fees paid by the patent holder. Startup FindTheBest has already used the new rule from Octane to win a big fee award from an abusive troll.
The year’s blockbuster case was Alice v. CLS Bank. In Alice, the Supreme Court held that adding “do it on a computer” to an otherwise abstract idea does not make it patentable. It may be years until we fully understand Alice’s impact, but early signs are positive with lower courts invalidating over a dozen patents under the new standard. These have been a rogue’s gallery of bad patents (like a patent on playing bingo on a computer) that clearly should never have issued. The Patent Office has also started implementing Alice, which we hope will lead to fewer bad patents being granted. Alice will not solve all problems with software patents. But it has already had an impact and appears to be slowing the flood of troll litigation.
Throughout the year EFF kept up the fight against patent trolls and the harm caused by software patents. We filed amicus briefs in all of the Supreme Court cases mentioned in this post, and filed several more at the Federal Circuit. We also continued our challenge to Personal Audio’s podcasting patent (the hearing in that case was this week and we should get a ruling by April next year). We inaugurated a Stupid Patent of the Month award and found some, very, very deserving winners. (We even helped to get one patentee to expressly abandon its patents.) We helped launch the Defensive Patent License, which companies can use to promote open innovation. And we filed comments with the Patent Office asking them to do a better job reviewing patent applications and to make sure they apply the new Alice standard diligently.
Next year is shaping up to be another big year in patent reform. This time, the action is likely to be primarily in Congress. We will be urging Congress to pass legislation that tackles both patent trolling and the low-quality software patents that fuel it. Let's make sure 2015 brings the reform we need.
This article is part of our Year In Review series; read other articles about the fight for digital rights in 2014. Like what you're reading? EFF is a member-supported nonprofit, powered by donations from individuals around the world. Join us today and defend free speech, privacy, and innovation.