August 1, 2012 | By Julie Samuels

Can You Believe It? Legislation that Would Actually Help Fix the Patent System

Finally, a moment of sanity. Today, Rep. Peter DeFazio, along with co-sponsor Rep. Jason Chaffetz, introduced legislation (HR 6245) in the House of Representatives that would actually help make the patent system work better for innovators and innovation, and make life more difficult for patent trolls.

We have written time and again about just how broken the system is and how, thus far, the courts and Congress have failed to fix it. Which makes us even more excited about the new bill, the Saving High-Tech Innovators from Egregious Legal Disputes ("SHEILD") Act. The idea behind the SHIELD Act is simple: if you sue someone, you better have a reasonable and good-faith belief that you are entitled to relief. In other words, a plaintiff needs to believe that a defendant actually infringes a valid patent before it sues. If it doesn't, that plaintiff could be on the hook for the costs of litigation and for the winning party's attorneys' fees (which can cost hundreds of thousands of dollars in some cases).

Fee shifting, often called "loser pays," is not a new idea. It's long existed in copyright law, for instance, allowing a court to award a winning party costs and fees in certain cases. In patent litigation, this type of provision would help tilt the playing field slightly more in favor of the good guys. To understand, think about the patent troll business model: making broad claims of infringement based on patents of questionable validity is the troll's favorite move. It's no wonder that many defendants choose to pay up rather than take the time, energy, and especially the money to fight in court. Fee shifting would empower innovators to fight back, while discourging trolls from threatening lawsuits to start. 

This bill is also important because it would only apply to software and computer hardware patents. We've said before that a one-size-fits-all patent system doesn't make sense, especially when we start talking about software. Whether or not you think software should be patentable at all, the law recognizes those types of patents (for now at least). Given that, we support policies and legislation that treat software differently—in other words, it's time to hack the system to make it work for coders, developers, and innovators of all stripes.

If you support this fee-shifting proposal, then please make your voice heard at defendinnovation.org. EFF started this campaign to address some of the biggest problems with the patent system by asking those who actually work with software and deal with patents how they think the system can best be fixed.  On defendinnovation.org, we proposed seven ideas that we think would help (including a fee-shifting proposal like the SHIELD Act), but we want to hear what you think. So far, nearly 10,000 people have spoken out to support our proposals. If you are frustrated with the software patent system, let us know at Defend Innovation. You can sign on to all seven of our proposals or suggest your own. (And if you think software patents should be abolished, you should comment here.)  We'll be writing Reps. DeFazio and Chaffetz expressing our support for their efforts, and we'll let them know how many people expressed their support for fee-shifting fixes at Defend Innovation.

Will a fee-shifting provision fix everything that’s wrong with the patent system? Nope. But will it help? We think so. Kudos to Reps. DeFazio and Chaffetz for taking an important step toward patent reform legislation that actually makes sense.


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