The US patents system is broken and now it’s time to fix it

24 Feb 2015

The US’ shambles of a patent system that stymies innovation and allows patent trolls to profit from weak legal protection can be fixed, the Electronic Frontier Foundation (EFF) said today.

“Fixing the current patent mess will require concerted action, but it can be done,” EFF staff attorney and the Mark Cuban Chair to Eliminate Stupid Patents Daniel Nazer said.

“Now more than ever, there is both the need and the will for real and lasting reform.”

The EFF outlined how the system could be fixed in its Defend Innovation whitepaper, which draws from the stories and ideas of over 16,500 people.

Split into two parts, the report covers both the challenges facing innovators under the current patent regime, as well as concrete measures that policy-makers must take in the coming year.

Fixing a broken regime

In the first part of the report, EFF provides in-depth analysis of how overbroad and vague software patents, combined with an insufficient review process by the US Patent and Trademark Office, have hindered rather than supported innovation.

The EFF said this broken regime has created an environment ripe for abuse by patent trolls, also known as “patent assertion entities,” that sue or threaten to sue businesses for patent infringement, even though these entities don’t make or sell a product themselves.

The explosion in software patents has also led to a patent arms race, in which companies acquire broad patents for defensive purposes.

“The US Patent and Trademark Office is issuing far too many weak and overbroad patents, particularly on software,” EFF staff attorney Vera Ranieri explained.

“Instead of promoting innovation, these patents become hidden landmines for companies that bring new products to market.”

In the second part of the report, EFF prescribes six legislative reforms that would begin to fix the patent system. These include:

  • Ensuring there are inexpensive and efficient tools for challenging the validity of issued patents
  • Passing a comprehensive patent reform bill, such as the Innovation Act
  • Ending the Federal Circuit’s exclusive jurisdiction over patent cases
  • Passing legislation to discourage bad actors from sending frivolous demand letters

The EFF is calling on private companies to adopt alternative patent licensing schemes that can help prevent patent abuse.

“All three branches of government, as well as individuals and companies, have a part to play when it comes to patent reform,” EFF activist Adi Kamdar said.

“Right now, we need legislation that clamps down on litigation abuse by patent trolls and bad actors, and empowers those on the defensive end of frivolous lawsuits to fight back swiftly and cheaply.”

John Kennedy is a journalist who served as editor of Silicon Republic for 17 years