Hacking the patent system: Open source and patents

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Ginormous losses from NPE software patent lawsuits


Recently, I caught up with Daniel Nazer of the Electronic Frontier Foundation (EFF) to pose a few questions relating to software patents. Daniel is a staff attorney at EFF, where he occupies the Mark Cuban Chair to Eliminate Stupid Patents and focuses on patent reform.

Daniel will be speaking at SCaLE 14x about the patent system and open source licensing. Find out more in this interview.

Why are there so many software patents?

It is far too easy to get software-related patents that have broad and vague claims. This rewards people who game the patent system and hurts people who actually develop software. The current system also encourages companies to stockpile patents for defensive purposes. As long as the patent office keeps issuing software patents, many companies will feel they have little choice but to keep applying for them.

Is there a practical way for a developer to be sure they're not infringing on a software patent?


There are approximately 400,000 software patents currently in force and about 50,000 new software patents every year. And each of these patents has multiple claims. One paper estimated that if all software firms conducted thorough patent clearance, the annual cost of that process would be greater than the market capitalization of the entire industry.

Firms can do targeted searches to try and minimize risk (looking at the patent portfolio of direct competitors, for example), but they will always be at risk of surprise patent attacks.

Are open source developers more or less vulnerable than proprietary developers to patent attacks?

This is an interesting question. In theory, open source development should be more vulnerable because the code is available for inspection and thus available for patent infringement analysis. In practice, I don't think it makes much difference. This is because software patents tend to be very vague and are claimed at quite high levels of abstraction. Patent trolls can just analyze the user interface and general functionality of software. For example, you don't need to see the actual code to figure out if someone is infringing a patent that claims online shopping carts. So all developers are vulnerable to patent attacks.

Do we need fundamental reform of the patent system with regard to software patents?

Yes. I don't think software patents promote innovation. I think they primarily serve to entrench incumbents with huge patent portfolios and to reward opportunistic patent trolls. Ultimately we should rethink whether software patents should be allowed at all.

What systematic reforms do you see as most promising?

Congress is considering some legislative reform, but it is generally aimed at litigation abuse. Unfortunately, there is nothing on the table right now that deals with the more fundamental problem of the huge volume of low-quality software patents.

Are there any books or websites you can recommend to learn more about the software patent problem?

We blog regularly about these issues at EFF's Deeplinks blog. I especially recommend our Stupid Patent of the Month series. We have a white paper on patent policy at Defend Innovation.

Other resources include Public Knowledge and the Free Software Foundation.

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Rob Tiller is vice president and assistant general counsel for Red Hat, where he manages patent, trademark, and copyright matters. He is a frequent speaker and writer on open source legal issues. Before coming to Red Hat, he was a partner with the law firm of Helms, Mulliss & Wicker, PLLC, where he specialized in commercial and IP litigation.


I do wonder though why Mr. Nazer asks the right question by saying "Ultimately we should rethink whether software patents should be allowed at all." A position to which I fully agree, but OTOH the official EFF position at defendinnovation.org is not asking that question and instead promotes a set of policy changes to somehow save software patents but make them less of a problem.

This inconsistency has always puzzled me.

I met him at last 32C3, I told him FFII looked years ago to send them a good letter to stop those "turn around the pot" campaigns to improve quality and others (defensivepublications etc...). We are in 2016 and we have better tools for campaigning now, it should be easy to get thousands of companies, including the big ones, to ask for a pure and simple abolition. At some point, I was so depressed about EFF that I thought to create an FFII.us and to show them how to campaign.

"Unfortunately, there is nothing on the table right now that deals with the more fundamental problem of the huge volume of low-quality software patents."

In Alice v CLS the US Supreme Court decided that Alice's patents were invalid because they were unpatentable abstract ideas. More importantly the Supreme Court ruled that writing an unpatentable abstract idea into software does not make the idea patentable.

The current Supreme Court is reluctant to make a ruling any more generalized than absolutely necessary. Even so we need to take a software patent that is unpatentable for a reason other than being an unpatentable abstract idea and have the Supreme Court declare it invalid and that writing that type of unpatentable idea into software does not make the idea patentable. In the same case we could also advocate that the Supreme Court rule that no unpatentable idea becomes patentable by being written into software rather than the Supreme Court having to make a series of rulings for each class of unpatentable ideas. The net effect of such a generalized ruling would be a defacto abolition of software patents.

Steve Stites

'It is far too easy to get software-related patents that have broad and vague claims...'

So say large invention thieves and their paid puppets. Don't believe their lies.

The opposite is the truth. If an inventor wants a patent, he or she will have to fight for years at great expense. Otherwise, he will not get any or that which he does get will be so narrow that it will not adequately cover his invention. We believe the PTO's PAIR site will confirm this, but because the keyword list with value, ranges and definitions on their web site database is incomplete or indecipherable it is not readily obtainable to us or the public and may not be obtainable to the PTO. Maybe they're hiding that information? Recent disclosure about a secret program at the PTO to delay or refuse issue of select applications has to make one wonder. For over 10 years the inventor community has been aware of an unseemly connection with industry trade groups (noted invention thieves) and PTO management.

For more information please visit us at https://aminventorsforjustice.wordpress.com/category/our-position/
or, contact us at tifj@mail.com

I think software patents (patenting "inventions consisting of a computer program") simply need to be excluded from being considered inventions, in the same way that creative works like music, novels, videos, and other forms of artistic expression are excluded. That's what we've done In New Zealand. We managed to get software patents banned (a computer program is no longer considered to qualify as an invention) in the NZ jurisdiction. I believe we were the first country in the world to do this explicitly in 2012. Here's the story of how we did it: https://softwarepatents.org.nz

"a computer program is no longer considered to qualify as an invention"

Except that you still have the infamous "as such" provision, which has been a loophole allowing software patents, especially at the EPO and in Germany.

This "as such" provision has no correspondance in industry litterature, it has no meaning whatsoever.

In reply to by Lightweight

The full phrasing is "relates to ... as such".

In reply to by zoobab (not verified)

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