July 9, 2012 | By Adi Kamdar

Defend Innovation: The Conversation Continues

The current patent system is flawed and makes it easy for corporations (like Apple and Microsoft) to abuse the system. Patents are being used as an anti-competitive weapon. This must stop if we are to create a dynamic economy.

– Marius Caldas, Senior Software Engineer, Atlanta, GA

EFF launched our Defend Innovation campaign to put forth seven proposals that we think would make the patent system better for software, and—more importantly—to solicit feedback from the community on how to address the broken patent system. So far the response has been outstanding: thousands of individuals have left their comments about how patents impact the future of software innovation. The wide variety of replies comfirms what we already knew: the patent system affects policy makers, legal practicioners, and engineers in different ways. In fact, many in our community think our proposals go too far while others argue that they do not go far enough.

Despite the diversity of opinions, a vast majority of commenters on both sides agree that the current patent system is simply broken. Patent trolls and large corporations repeatedly abuse software patents through frivolous litigation and licensing schemes. Change must come, and EFF will use the feedback from our Defend Innovation campaign to show Congress the changes that those working in the field really want.

Here are a few prominent examples of the dynamic discussion currently going on:

Alan Wexelblat at Copyfight disagrees with the idea that software patents should be scrapped altogether:

There are alternatives to abolishing patent protections; for example, we've talked about trying to restrict patents to defensive-only uses. And we've talked about patent pools. I still believe that the monopoly grant given by a patent should be subject to more restrictions. But you can't just hand-wave them away and not talk about the consequences.

Timothy B. Lee from Ars Technica expressed his views on software patents ("End them, don't mend them") in an opinion piece:

Not only is abolition the right policy on the merits, but clearly advocating the elimination of software patents makes it more likely Congress or the courts will adopt more modest reforms. … There's nothing wrong with EFF formulating and advocating incremental reforms to the patent system. But in my view it's also essential for the nation's leading online civil liberties organization to clearly say that the best reform would be to eliminate software patents entirely.

The Free Software Foundation's Richard Stallman responded on Defend Innovation with a suggestion for an an alternative approach:

I … recommend that we approach the problem at the other end, by legislating that software to run on general-purpose computing hardware be excluded from patent infringement.

This means we don't need to try to distinguish between software patents and other patents. We only need to distinguish between software and hardware.

We're encouraged to see such a lively conversation happening around software patents, especially one with so many viewpoints represented. However, we would ask commentators like Mr. Lee and Mr. Wexelblat to provide their comments at defendinnovation.org, so we can ensure their opinions are taken into account when we craft our final report. To be clear, the Defend Innovation project aims to provide a platform for this important conversation, and we all serve to benefit from a lively and respectful debate on software patents.

Have you signed on to our efforts yet? Thousands of lawyers, academics, engineers, and Internet users already have. Join the discussion at defendinnovation.org.

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