EFFecting Digital Freedom

by Elliot Harmon

The Patent Reform Gridlock: Let's Pick Bigger Fights

The purpose of the patent system is to encourage innovation.

But if you were to build a patent system from scratch with the express purpose of encouraging innovation, it would look very different from the mess we're in today.

For example, you might not design the patent system in a way that lets patent owners file infringement lawsuits in any court district in the U.S.  You'd set up a system where the venue for a patent case is determined based on facts that are important to the case - maybe cases could only happen in the district where the alleged infringer is based, for example, or where the inventor lives.  You'd realize that letting patent owners sue anywhere could lead to them getting all kinds of other advantages.  You'd probably even foresee the possibility of court procedures emerging that attract patent suits.

You'd be right.  Today, nearly half of the patent cases in the country are heard in the Eastern District of Texas; in fact, last year, a single judge heard a third of the patent infringement cases in the country.  Many of those are filed by non-practicing entities - or patent trolls - companies that don't actually do anything except amass patents and sue people over them.

It's easy to see why patent trolls flock to East Texas.  In a lot of ways - some obvious, some more subtle - it's made itself the most attractive district in the nation for trolls' lawsuits.  East Texas judges have adopted non-standard rules and practices that can make patent cases more expensive and frustrating for defendants.  Those extra costs give patent owners extra leverage to push for a settlement before a trial begins.  When a case does go to trial, the patent owner has a higher-than-average chance of winning.  In a system designed to achieve the correct outcome on the merits of a case, no one would intentionally allow the most plaintiff-friendly judges to get all the cases.

For the record, no one did design the system that way.  It's the result of a series of unfortunate court rulings that gradually changed how the law was interpreted.  People who defend the current patent system love talking about history - they appeal to quotes from Thomas Jefferson and Abraham Lincoln about how valuable the patent system is to American innovation.  They don't talk about the fact that most patent reform initiatives are aimed at problems that appeared in the system long after Lincoln's time.

That brings us to today.  If you follow EFF on Twitter or get our mailings, you've definitely heard us telling you to write your members of Congress about patent reform.  Right now, we endorse five different patent reform bills in Congress.  Each time one gets introduced, there's a lot of fanfare and a lot of support from both Republicans and Democrats.  And just when it seems like one of them might actually come up for a vote, it mysteriously vanishes from the agenda.

The most recent one is the goofy acronymed VENUE Act (Venue Equity and Non-Uniformity Elimination Act), which would address the Eastern District of Texas problem by providing a new set of requirements for where a patent infringement case can be filed.  When the VENUE Act was introduced, it got the support of everyone from EFF to Comcast NBCUniversal.  For a minute there, it seemed like the VENUE Act was going to pass easily.  Then, just as quickly, the head of the Senate Judiciary Committee back-burnered it.  While we wait for the moment when patent reform becomes politically convenient, patent trolls continue to wreak havoc on innovators.

There's another problem with the patent reform debate, though.  The goal posts are too close.  As we bicker about small ways to curb some of the patent trolls' unfair advantages, we're really missing out on the bigger discussions we should be having.  Why does the Patent Office issue so many bad patents in the first place?  Stupid software patents are patent trolls' secret weapons.  How do we get those weapons off the street?

If we rebuilt the patent system from the ground up with the singular purpose of stimulating innovation, what would it look like?  Would the amount of time before a patent expired be shortened?  Would software patent owners be required to provide source code with their patent applications?  Would software patents exist at all?

It shouldn't just be policy wonks having that discussion, either.  It should be people who build technology.  It should be people who write code.  It should be hackers.  It should be people who read 2600.  You.

As a footnote, while Americans have spent the past few months trying to get a bill passed that already has very broad support, India made a much more dramatic change to its patent system.  In February, the Indian Controller General of Patents, Designs, and Trademarks issued an order to stop issuing software patents altogether.

In the U.S. political climate, it's hard even to imagine a change like that happening.  But if we only ever talk about small, iterative changes, then the bigger ones will stay unimaginable.