New EFF campaign proposes seven changes to U.S. patent system

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patent reform ideas

Last week, the Electronic Frontier Foundation launched Defend Innovation, a campaign to end software patent abuse, promote seven alterations to the United States patent system, and initiate dialogue about the ways software patents actually hinder the inventors they are designed to protect.

"The software patent system is broken," said EFF Staff Attorney Julie Samuels in a statement released last Tuesday. "Patents are supposed to help promote new inventions and ideas, but software patents are chronically misused to limit competition, quash new tools and products, and shake down companies big and small."

A new website——neatly summarizes the EFF's position on software patents as well as the organization's proposed changes to the current patent system:

  1. A patent covering software should be shorter: no more than five years from the application date.
  2. If the patent is invalid or there's no infringement, the trolls should have to pay the legal fees.
  3. Patent applications should be required to provide an example of running software code for each claim in the patent.
  4. Infringers should avoid liability if they independently arrive at the patented invention.
  5. Patents and licenses should be public right away. Patent owners should be required to keep their public records up-to-date.
  6. The law should limit damanges so that a patent owner can't collect millions if the patent represented only a tiny fraction of a defendent's product.
  7. Congress should commission a study and hold hearings to examine whether software patents actually benefit our economy at all.

Internet users can support the EFF's seven proposals by adding a digital signature to Defend Innovation, and the EFF will soon travel through Silicon Valley to collect stories about the effects of patent abuse from entrepreneurs. It will combine these signatures and narratives with expert testimony from academics, lawyers, and inventors to produce a white paper entitled In Defense of Innovation—which it will use to educate lawmakers in Washington, D.C.

But Defend Innovation also acts as a platform for conversation about software patents, bringing together programmers, engineers, patent holders, academics, activists and others concerned with the ways in which software patents stifle innovation.

"The U.S. Patent Office is overwhelmed and underfunded, and issues questionable patents every day–patents that hurt innovators and consumers alike," said EFF Activism Director Rainey Reitman. "It's time for the technology community to work together to create a blueprint for reforming the broken software patent system."

And work together they have. Since debuting June 19, has collected thousands of signatures and attracted numerous comments (like this one from the Free Software Foundation's Richard Stallman), according to EFF staffer Molly Sauter.

"Since we launched, we’ve already received an amazing response, and now we’re watching as more and more people sign the petition and leave comments," Sauter said. "This campaign isn’t just about our proposals–it’s also about creating a space for the tech community, inventors, academics, and others to express their concerns and suggestions for dealing with the patent system."

Bryan Behrenshausen
Bryan formerly managed the Open Organization section of, which features stories about the ways open values and principles are changing how we think about organizational culture and design. He's worked on since 2011. Find him online as semioticrobotic.


Woooooo! Sounds like a great initiative. Let's hope it doesn't fall on deaf ears.

I would have to say I actually disagree with change #3. In my memory, the patent office has never asked inventors to provide a prototype for their inventions, and now that the US has become a first-to-file country, it seems even more unreasonable to expect inventors to submit working code when they make their application.

The patent office has long had the right to require a working model. (Among other things, it keeps people from trying to patent perpetual-motion machines.) Change #3, as far as I can see, basically applies that requirement to software. Since software patents are relatively easy to write broadly (they tend to cover relatively abstract concepts), I wonder if perhaps the working-code requirement might be an attempt to keep applications a little closer to practical reality. (As always, I could be wrong.)

It's not clear to me that being first-to-file makes the requirement of working code unduly burdensome--since everybody needs to provide code with their filing, wouldn't the code requirement burden all applicants pretty much equally? Or am I missing something?

"4. Infringers should avoid liability if they independently arrive at the patented invention."

That is the essence of copyright law. You can write your own code as long as you don't copy somebody else's. If you abolish software patents entirely then the existing copyright law provides all of the intellectual property protection needed to implement point 4..

Steve Stites

EFF petition is too weak, time to start FFII in the United States.

Agree.. way too weak. It's one thing in biotech, where investments are in the billions, and it takes years to get a product to market. In software, patents are simply a barrier to innovation - used more to block competitors than to protect innovation.

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