In most issues of EFFector, we give an overview of all the work we’re doing at EFF. Today, in light of recent developments at the U.S. Patent Office, we’re doing a deep dive into a single issue: recent changes to the patent system, and how it’s in danger of heading backwards.
The patent system is broken. The U.S. Patent Office has been issuing vague, overbroad patents for years, especially relating to software. And now the Patent Office is threatening to open the door to even more low-quality software patents. Please join us in telling them to abandon this misguided plan.
There are hundreds of “patent troll” companies that exploit our patent system. Today, patent trolls file the majority of high-tech patent lawsuits, covering commonly-used technology from podcasts to newspapers to virtual reality. These companies and individuals produce no products or services—instead, they simply collect patents, and demand money from those working to innovate.
After years of complaints about frivolous patent claims, both Congress and the courts made small steps in the right direction. In a case called Alice v. CLS Bank, the Supreme Court barred patents that claim abstract ideas simply by adding computer language. Congress passed the America Invents Act, which allows the public to challenge patents at the Patent Office in a process called “inter partes review.”
Reforms Under Fire
Now, both Alice and the IPR process are under attack. The new Director of the U.S. Patent and Trademark Office, Andre Iancu, denies that patent trolls are a problem at all—he called them “monster stories.” The Patent Office has issued new guidance to patent examiners, encouraging them to make an end-run to get around the rules of Alice. This could take us back to the bad old days, opening the floodgates to even more of the overbroad software patents that already plague the system.
At the same time, lobbyists are working to weaken Section 101 of the U.S. patent laws. That’s the section that we rely on to kick many of the worst patents out of the system—without going through jury trials that can cost millions of dollars. Lobbyists for patent trolling companies are on the same side as big corporate patent-holders.
If you care about a patent system that doesn’t trample on and extort small developers and business owners, now is the time to speak up. First, check out our Take Action page, and tell the U.S. Patent Office to stop trying to get around the Alice rules. Also, if you’ve personally been affected by bad patents or patent trolls, and are willing to speak out about it, get in touch with us at EFF. We’ll need your help as this debate moves forward—Congress has to hear from those who want a balanced patent system, not one that works just for licensing companies and giant patent-holders.
Until the Alice v. CLS Bank decision, the U.S. Patent Office had been issuing tens of thousands of abstract software patents. All too often, these patents described everyday culture or business relationships, and then added “do-it-on-a-computer” language describing generic computer hardware and software.
The Alice decision made it clear that abstract ideas can’t be patented just by adding computer language. Unfortunately, new guidance issued by the U.S. Patent Office could undermine the Alice ruling. The guidance downplays rulings that find software-related patent claims ineligible, exaggerates the importance of a few rulings that have allowed software claims, and asks examiners to review applications in a way that is inconsistent with Alice.
Rather than fairly representing all sides, the Patent Office is putting its thumb on the scale in favor of patent applicants, at the public’s expense.
We’re asking EFF supporters to weigh in and tell the Patent Office that creating new rules to bypass a Supreme Court ruling is unacceptable. You can submit a comment on our action page from now through the close of the comment period on March 6.
Justus Decher’s telehealth company hadn’t yet made a dime of revenue when it was hit with a patent troll demand letter. Ultimately, the entity threatening him, MyHealth, offered a deal—if Decher paid $25,000 right away, he could avoid a patent lawsuit.
It felt like “extortion” to Decher. “They were asking me for money that they did not deserve,” he told us. MyHealth had a patent filled with diagrams of doctors, computers, and communication lines, as well as a broad description of “remote patient monitoring.” Decher, on the other hand, had sunk years of work and money into actually creating a working system.
Decher was saved from expensive litigation when a judge in a different case analyzed MyHealth’s patent according to the rules set forth by the Supreme Court in the Alice v. CLS Bank decision. The patent was promptly thrown out, and thanks to Alice, Decher could get back to business.
We interviewed Decher about his experience facing off with a patent troll, and have made the video part of our Saved by Alice project. Saved by Alice highlights small businesses that rely on the Alice decision to fight back against patent troll extortion.
Patent trolls aren’t a myth, or a bedtime story. Many software developers will know someone who has been sued or otherwise threatened by one, if they haven’t been themselves.
Rather than try to get the patent system back in balance, the new director of the U.S. Patent and Trademark Office, Andre Iancu, has chosen to deny that trolls even exist. Iancu even went to East Texas, the heart of the patent troll problem, where he gave a speech to lawyers and judges calling accounts of patent trolling “scary monster stories.”
Iancu isn’t listening to the stories of small businesses hit by patent demands week after week—but at EFF, we are. Last week, two dozen small and medium-sized businesses sent a letter to Iancu telling him that patent trolls remain a real threat to U.S. businesses. The letter explains the harm, cost, and stress that patent trolls cause.
These voices are going to be more important than ever, with lobbyists for patent trolls and big patent licensors now pushing Congress to change patent law in exactly the wrong way. It starts with voices willing to stand up and say a problem exists.
The business of patent trolling is a secretive one. Often, patent trolling businesses are set up behind a maze of shell companies. This allows patent trolls to confuse their targets, who often don’t even know who owns the patents being asserted against them. It also allows trolls to hide their assets, and sometimes avoid court-ordered sanctions.
Even though secrecy has become normalized in patent troll cases, that’s not how it should be. In a California case involving prolific patent troll Uniloc, EFF has filed a motion to intervene, insisting that Uniloc unseal key documents about how it does business.
The judge in this case has agreed that Uniloc improperly sought to keep documents secret. Uniloc is now fighting that ruling, and EFF will defend it.
Efforts like these are vital, because Uniloc has sued hundreds of technology companies demanding payments. The public has a right to know exactly what patent trolls like Uniloc claim they “own.”
Patents are government-granted rights meant to benefit everyone. EFF will keep fighting to make sure that patent trolls can’t do their business in secret.
Eyebeam, a local organization in the Electronic Frontier Alliance (not EFF) will host a new exhibition (Feb. 8-March 31) offering a politically engaged and inclusive vision of the intersection of art, science, and technology. The exhibition, in partnership with the REFRESH collective, is hosted by Hunter College Art Galleries.
On Feb. 21 at 6:30pm, Author Susan Crawford will be in conversation with Wired’s Peter Rubin at the Mechanics Institute in San Francisco. “Fiber” combines policy expertise with on-the-ground reporting, as Crawford reveals how corporations that control cable and Internet access in the United States tilt the playing field against competition, and how cities and towns are fighting this monopoly power in their communities.
Admission is free for EFF supporters.
On Feb. 27 at 6:00pm, EFF’s Bill Budington will discuss browser tracking techniques that have developed over the last decade. The techniques allow remote sites to leverage the feature-rich web to track users without their knowledge or consent.
This event is hosted by Privacy Lab, a local organization in the Electronic Frontier Alliance (not EFF). It will take place at Google’s San Francisco office.
A new field is emerging in the professional field of public interest technology—a community of people using their skills in technology to change the world for the better. Join an inspiring track at RSA on Thursday, March 7, with cybersecurity expert and EFF Board Member Bruce Schneider, EFF’s Executive Director Cindy Cohn, and over a dozen other security, civic, and social sector leaders.
EFF is looking for an Engineering and Design project manager, who will support and facilitate communication between EFF teams.
This full-time activist position will focus on privacy issues, particularly around government surveillance. The ideal candidate will be a superb writer with a passion for protecting freedom online and the ability to think critically and manage time effectively.
EFF is seeking a full-time developer for Privacy Badger, who will work with our Browser Extensions team. This is one of our efforts to protect users’ privacy online and block tracking.
We need a smart and motivated person with great organization and communication skills to provide administrative support for EFF’s executive team. This person will collaborate daily with the Executive Director, Deputy Director, and Chief Program Officer.
Telecom companies are pushing misleading hype about 5G, which is still years away. 5G standards will rely on existing fiber infrastructure—and we aren’t ready for it. (Slate)
Dating sites collect sensitive personal information like drug usage habits and sexual preferences. They also have dozens of trackers that can collect profile information, as well as information on where a user clicks or looks. (Axios)
Facebook, Google, and other tech companies are lobbying to water down a California law passed last year to regulate data collection. (Washington Post)
The chair of Oakland’s Privacy Advisory Commission was detained, sometimes at gunpoint, by Contra Costa Sheriff’s deputies when a car he was driving was wrongly marked by automated license plate readers as stolen. “They’re just pulling guns and going cowboy on us,” said Brian Hofer, who has sued the county over the matter. (KTVU)