June 19, 2012 | By rainey Reitman and Julie Samuels

Want to Abolish Software Patents? Tell Us.

Today, EFF launched a new campaign against software patents (https://defendinnovation.org).  In this campaign, we outline seven proposals that we think will address some of the greatest abuses of the current software patent system, including making sure that folks who independently arrived at an invention can’t be held liable for infringing on a software patent. But our campaign isn't just about our proposals — we also want to hear, and amplify, the views of the technical community.  Many engineers, researchers, and entrepreneurs have suggested that reform is not enough and that software should not be patentable, period. We want to record these views, which is why our Defend Innovation campaign is designed to solicit comments from all of the stakeholders. We'll incorporate what we learn into a formal publication that we can take to Congress that reflects the views of innovators, academics, lawyers, CEOs, VCs, and everyone else who is concerned about the software patent system.

People who have been following the software patent space know just how flawed the current system is and how, instead of promoting new inventions, software patents are being turned against everyday inventors. It’s got creators up in arms (and rightly so) and we’ve been working for years to bring attention to this growing crisis.  A lot of people want to abolish software patents altogether, while others hold out hope that reforms can help address the situation. Well, here’s the truth of it: neither reforms nor abolition of software patents will be possible unless software patents are treated differently under the law than other types of patents.

In 2008, we fought hard to get the courts to appreciate the difference between physical inventions and software inventions, submitting an amicus brief in the famous Bilski case. Unfortunately, we lost that battle – the Supreme Court wasn’t ready to get rid of software patents altogether (recently, however, the Supreme Court has signaled that it may be uncomfortable with particularly egregious software patents). Congress, too, has failed to really help. Part of the problem is that certain entrenched interests and lobbyists — particularly in pharmaceuticals and biotech, for example — have made fundamental change to the patent system nearly impossible. So it’s time to treat software differently, get those parties out of the equation, and fix the law to reflect the realities of technology and the tech community.

Regardless of whether you think software patents should be abolished altogether or just reformed, the first step is recognizing that a one-size-fits-all patents system doesn’t make sense and that we need to treat software patents differently from other types of patents. Without that, no effort – whether reform or abolition – can be successful.

This is the basis of our Defend Innovation campaign – some proposals to help address the most egregious abuses of the software patent system and a fact-finding mission to hear from concerned individuals about whether or not the system is working at all.  Of course, there are many views about the best way to fix the software patent mess. We want to hear those opinions, even (especially) if they are that software patents simply don’t make sense at all. This is a serious problem and overcoming the political obstacles is not easy. That doesn’t mean we can’t and shouldn’t work together to force Congress and the legal system to take these problems seriously.

Join us, won’t you? https://defendinnovation.org

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