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Software patents hold back progress -- even in healthcare

by Donald Robertson Contributions Published on Jun 22, 2020 01:49 PM
Lifesaving technology should belong to everyone, but the United States Patent & Trademark Office (USPTO) is working day and night to restrict access, even during a global pandemic.

On Friday May 8th, the USPTO announced the COVID-19 Prioritized Examination Pilot Program. Doctored up to look like a helpful response to a global pandemic, it's actually the exact opposite. Under the program, the USPTO will waive some fees associated with accelerated application review for patents on works that require US Food and Drug Administration (FDA) approval. They'll also work to try and get these applications granted within six months. These changes will make it easier and faster for people to gain patents on any technology related to the pandemic, including patents on software. It's not in our scope to determine the impact of other kinds of patents, but we know specifically that they are terrible for software, and at a time where software is critical to saving lives, expediting software patent applications will only cause harm.

To be clear, this program does not speed up FDA approval, or help to get lifesaving technology to the people who need it most. It doesn't create supply chains or help fund the development of medical technologies and software. All it does is make it easier for someone to "own" that technology, to make it quicker and cheaper to restrict others from implementing and sharing tools that people need to survive. It rushes the patent application process so that someone could be able to sue others trying to save seriously ill patients around the world before the global pandemic is over.

While the crisis was unfurling, the GNOME Foundation was still expending resources fighting off a patent suit started in 2019. On May 20, 2020, the GNOME Foundation succeeding in securing a release and covenant not to sue from the patent aggressor for all software released under a free license. This was a major win for software freedom that took months and months to realize. But the threat remains, and the only reason someone would need to get their patent granted sooner is because they want to start their lawsuits sooner, to disrupt the flow of medical technology in order to siphon off profits from those seeking to alleviate the worst pandemic in a century.

Taken together with a recently released report from the USPTO patting themselves on the back for ignoring the US Supreme Court in order to increase the number of software patents, it's clear that the USPTO views its mandate as requiring them to crank out as many patents as they possibly can. In Alice v. CLS Bank, the US Supreme Court limited the patent eligibility of software implemented on a general purpose computer. As the USPTO report stated, this increased the number of patent applications receiving initial rejections. So last year the USPTO released "guidance" that weakened those limitations, and now the number of software patents speeding through its pipeline has increased once again.

Even in normal times, increasing software patent restriction is harmful to everyone. Software patents threaten all developers, putting them in the line of fire for ruinous lawsuits simply for creating and sharing their own code. Until the day when we can completely end all software patents, we should be reducing the harm done, not coming up with programs and guidance to accelerate the damage. But in the midst of a global crisis where hundreds of thousands have already died, where supply chains for medical technology are stretched beyond limits, creating a cheaper and easier fast track for causing further patent disruption is downright criminal.

While the USPTO is pretending to help with the response to COVID-19, it is actually throwing a supercharged wrench into the gears of medical supply distribution, so we the people have to come up with our own response that actually helps. Software patents cut people off from one another, but if we're going to respond adequately and humanely to this crisis, we need to all work together. That is why we are asking you to join our COVID-19 Response Team on the Free Software Directory. The Free Software Directory is a volunteer-run catalog of over 16,000 free software packages. It helps users to find software that they can modify and share with their friends. The ethics of free software are more important than ever, and we need to help people gain access to software that respects their rights. On the COVID-19 Response Team, we're directing our efforts towards ensuring that everyone has access to medical software, 3D printing designs of medical technology, and other tools that will be useful in the fight against this global pandemic. You can jump in and start working right away, or join us every Friday from 12 pm to 3pm EDT in the #fsf irc channel on Freenode.

Software patents are another kind of disease, and the USPTO has decided to become a super-spreader of that infection, which will in turn worsen the physical infections. Join together with us to fight back. We hope to see you every Friday, but here are some other ways that you can help:

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