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You are here: Home Bulletins 2013 spring You can’t make a good software idea patent

You can’t make a good software idea patent

by Joshua Gay Contributions Published on Nov 14, 2013 12:37 PM

Lately there have been many calls to reform the US patent system in the hopes of alleviating some of the problems caused by software idea patents.

People are outraged about "patent assertion entities" (more commonly known as "patent trolls") as well as by the awesome amounts of money technology corporations are spending on unnecessary patent litigation. There is also justified public concern that the hostile patent environment makes it harder to innovate. This discontent has triggered a reaction in government; some in Congress are looking to adjust the rules and costs of patent litigation with the SHIELD act and the US Patent and Trademark Office (USPTO) has been gathering public input as part of an attempt to reform their patent application review process. In June, the White House released a report, "Patent Assertion and U.S. Innovation" and President Obama announced five executive actions intended to add "greater transparency to the patent system and level the playing field for innovators."

With this surge of interest in reforming the patent system, the FSF has joined the conversation, arguing that rather than reform, our goal should be the elimination of the threat of software idea patents.

Last August the FSF's copyright and licensing associate, Donald, published our criticism of the SHIELD act. Many of our concerns with the reform being attempted in Congress apply equally well to the kinds of reform that the USPTO is trying to make.

Lately, Richard Stallman has given talks with legal scholars around the country. These talks focus on his proposal of a legal safe harbor from software idea patents, which would protect people from litigation for violating patents on software written for general purpose computers.1 In early April, RMS spoke at Loyola University Chicago School of Law at the "Patents, Innovation & Freedom to Use Ideas" conference and at the High Tech Law Institute at Santa Clara Law School, where he gave a keynote address alongside Google's senior vice president and general counsel, Kent Walker.

In January, the FSF tried to increase our presence in the patent reform debate by submitting an application to present at a USPTO round table event in New York City. Unfortunately, the USPTO rejected our application due to "overwhelming demand." Disturbingly, the scarcity of speaking slots seemed to be a conscious choice rather than an error in planning; despite the large number of organizations interested in a seat at the USPTO's "round table," the half-day conference was held in a small New York University classroom.

In April, I attended a Harvard Law School conference on patent and copyright law, where many of the ideas being discussed by the USPTO -- specifically, that improvements to the patent review process would lead to better-quality software idea patents -- were echoed by Federal district and circuit court judges and a former White House adviser, Quentin Palfrey.

These ideas are ungrounded and potentially counterproductive. Last August, we wrote that the SHIELD act is trying to "patch a broken system without questioning whether that system is harmful to begin with. This carries the unfortunate consequence of possibly prolonging the damage wrought by software patents. Any reform to reduce the risk of 'bad' patents risks entrenching a false notion of 'good' software patents."

I hope that others will join us and help move the conversation to one that focuses on eliminating the threat of software idea patents, rather than reforming a system that preserves them. To push for the kind of reform that is currently fashionable is to send the USPTO on a wild-goose chase in search of the elusive good software idea patent.

The problem is, it just doesn't exist.

1 Learn about this innovative proposal.

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