EFFecting Digital Freedom

by Vera Ranieri

Patent Trolls

Imagine in the 1990s, you file a patent on using a fax machine to get customer feedback.

Then, imagine that almost 20 years later you see an iPhone app that allows you to make in-app purchases.

Do you think, "Great, more candy to crush!" or do you think "I invented that!"?

If you're a patent troll, you'll stretch your patent to argue the latter and sue as many people as you can in order to try to get them to settle with you on an activity that barely relates to what you "invented."

The Patent Problem

The Constitution allows the federal government to grant patents in order to "promote the progress of science and useful arts."  Unfortunately, this laudable goal has been largely forgotten in modern patent law.  Instead, our patent system has been inundated with vague and over-broad patents which hinder, rather than promote, innovation.

Traditionally, patents were meant to work in two ways.  First, they were thought to encourage innovation by allowing an inventor to recoup the costs of innovating through a time-limited exclusivity period.  Second, because of the public nature of patents and their disclosure requirements, patents were thought to provide knowledge of the innovation to the public that would otherwise not be available.  Unfortunately, in today's patent system and especially in the software space, 20-year "monopolies" are being granted for marginal, if any, advances based on vague disclosures, thwarting the twin rationales for patents.  Patentees are getting overcompensated for their often minimal efforts and the public is receiving little, if anything, in return.  Once a patent troll is armed with a vague and over-broad patent, true innovation is harmed, as it becomes a weapon to extract unearned money from others.

Just What is a Patent Troll?

There is no one accepted definition of a patent troll - a troll can take many forms.  It can be the company whose sole purpose is to buy patents and sue others in order to extract a settlement.  It can also be a company or individual who files patents solely in order to later send letters demanding licensing fees, without ever producing any products.  Or it could be the company that tried and failed to bring a product to market and now merely sues in order to maintain a revenue stream.  The common thread with all these entities is that they use litigation - or the threat of litigation - in order to extract money from those who actually bring products to market.  And they can do this because they know that it is almost always more expensive (and without a doubt more risky) for an accused infringer to challenge the troll's claim in court.

Where We Are and How We Got There

We got to the current state of our patent system through a perfect storm of circumstances.

Inconsistently applied standards at an overburdened U.S. Patent and Trademark Office, reflexively pro-patent case law from the federal appeals court that hears patent cases, and trial court jurisdictions that encourage patent litigation in order to bring legal business and the associated money to the local economy all act to boost the filing and assertion of dubious patents.  And because of the high costs of defending against patent litigation, defendants are coerced into settling, even though the patent should be determined invalid or not infringed.  In turn, costs to the consumer rise and money that could be devoted to research and development or paying employees instead gets diverted to pay the troll's toll.

Thus for the public - whether you're a consumer, a technology worker, or an inventor - the end result of a patent system that encourages the filing of vague and over-broad patents is that it does anything but promote innovation.

How You Can Help

The Electronic Frontier Foundation (EFF) believes that over-broad and vague patents, along with the patent trolls that use them, should not be condoned.  For that reason, EFF fights for digital freedoms, including fighting against the (mis)use of intellectual property, including patents, to stifle new technologies.

EFF is working hard to protect and promote innovation by working to end the patent problem through meaningful patent reform.  But meaningful reform can only happen through efforts at the Patent Office, in the courts, and through Congress.  As a result, EFF is advocating for reform at the Patent Office so as to prevent bad patents from issuing.  EFF is also advocating in the courts for laws that better link the patent grant with actual invention.  And EFF is advocating in all forums for more tools to quickly and cheaply invalidate improperly granted patents.  Through these efforts, we hope to better encourage innovation.

And we've already had some success: the Supreme Court has shown a noticeable interest in patent law, deciding six patent cases last year, all in favor of the accused infringer.  EFF filed "friend-of-the-court" briefs in many of these cases, explaining why the appeals court's view of the law was wrong.

We've also seen progress towards passing new laws in Congress meant to stop abusive patent litigation and the assertion of over-broad patents.  Although the latest effort failed to get a bill passed, never before in recent history has Congress been so aware of the problems that patent trolls cause.

Finally, at the Patent Office, we've seen renewed interest in figuring out how to make sure bad patents don't make it through.  EFF has been there throughout the process, suggesting ways the Patent Office can better make sure bad patents don't get granted.

But there is still so much to do, on all three fronts.  This is no easy task, but you can help.  For example, if you've received a demand letter from a troll, be sure to let your Senator and Congressman (and EFF!) know.  Hearing your voice brings light to an issue that may otherwise be ignored.  And even if you haven't been directly targeted, let your representatives know that patents should promote, rather than harm, innovation: patents should not be granted on vague disclosures on incremental advances.

Finally, EFF can always use your assistance.  EFF believes that innovators need to be protected from established businesses and counterproductive business models that use the law to stifle creativity and kill competition.  Through your generous support, we will have more resources to advocate for a patent system that does, in fact, "promote the progress of science and useful arts."

To learn how you can help the EFF, visit supporters.eff.org/donate - credit cards and Bitcoin accepted.