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Electronic Frontier Foundation Patents Your Rights Online

EFF Announces New Patent Reform Project 93

Posted by timothy
from the realistic-windmills dept.
olsmeister writes "On Tuesday, the Electronic Frontier Foundation announced its 'Defend Innovation' project, which includes seven proposals for software patent reform. These proposals include things like shorter coverage for software patents, and a requirement to demonstrate running code for each claim in the patent."
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EFF Announces New Patent Reform Project

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  • by NoNonAlphaCharsHere (2201864) on Wednesday June 20, 2012 @12:13PM (#40386425)
    In other news, the EFF has adopted Don Quixote as their Official Mascot.
    • Laugh if you want, but you could have said the same thing about the ACLU a few decades ago. And whether you like the ACLU or not, they have had a tremendous impact on our legal and social landscape.

      I don't know if the EFF will have a similar impact, but they will certainlyhave no less than snarky slashdot commenters.

  • How about: (Score:5, Interesting)

    by SuricouRaven (1897204) on Wednesday June 20, 2012 @12:18PM (#40386515)
    No more granting patents for the bloody obvious! Things like Amazon's one-click, or Apple's patent for a slide-to-unlock bar. This includes things which may sound arcane and innovative but are actually obvious to anyone working in the field, which in turn means the examiners will need to be better trained.

    Or how about a 'fail fee' to discourage companies from fileing thousands of junk patents in the hope that just a few will be approved by luck and can be used to fill their patent chest?

    A ban on patents that provide no obvious benefit to mankind, but rather are intended specifically to prevent interoperability with a specific format? Things like filesystems or file formats. I'm thinking specifically of MSs patent on long file names in fat32.
    • by Bill Dimm (463823)

      No more granting patents for the bloody obvious!

      Sorry, but that would require adherence to existing law, not creation of a new law -- you'll never get a politician interested in that.

    • by stms (1132653)

      I thought of this the other day holders of patents and copyrights should be treated similarly to other government sanctioned monopolies. This needs to be within reason for example many government sanctioned monopolies are only allowed to make a 10% profit per year. As some copyrights and patents are extremely risky to invest in (at least some) would need an exemption from that. Other things really should have been there since the beginning for example I see no reason why right-holders shouldn't be required

      • by Talderas (1212466)

        So, because I sell one product that is covered by a patent, and 299 that aren't, I should be limited to only ever making 10% profit? That's asinine.

        • by stms (1132653)

          No I was saying the exact opposite of that but some government sanctioned monopolies are limited to only %10 profit per year.

    • You know what would fix about 30% of all the issues surrounding the patent office? Have patent examiners be paid regardless of how many patents they approve. You know what would fix about another 30% of the issues? Your fail fee.

      Yes, obnoxiously long patent terms in a world where things are outdated in 5 years are no good. So are patents on processes and mathematical constructs. But the terrible approach of judging an examiner's efficiency by how many patents they approve is guaranteed to result in obvious

      • by Jeng (926980)

        Have patent examiners be paid regardless of how many patents they approve.

        Interesting, I never knew that patent examiners get paid by commission. That would definitely cause issues and explains a lot.

      • by Jesus_666 (702802)
        I'd do it like this:

        Firstly, rework patent examiner commissions. Examiners get paid a reasonable monthly wage and they get a small bonus if they successfully reject a patent on grounds of prior art or unpatentability. However, every rejection is checked by another examiner who gets the bonus if they can show that the first examiner didn't do their job properly. There are no other repercussions for the first examiner if that's the case; they just don't get the bonus.
        Result: Patent examiners are now intere
      • As I understand it, patents were originally supposed to cover specific implementations, not general ideas. You had to have a working physical model. This has gradually expanded until patents do in effect cover ideas. Patents merely list every possible way it can be implemented, as broadly as possible.

        Now algorithms, software, and so called business methods can be patented. Patents can be effectively renewed by tweaking the ideas and applying for a new patent. There are lots of other tricks. They all

      • But the terrible approach of judging an examiner's efficiency by how many patents they approve is guaranteed to result in obvious patents being granted,

        Really? Give them 1 point for every 1000 patents they approve. Take away 1 point for every patent that is invalidated....

  • The only way to fix the patent problem is to shove GOBS OF MONEY down the throats of ever hungry politicians and their banks.

    • That's bribery. If you've got money to spend, use it to help candidates who will do the right thing without receiving kickbacks.
      • by cornjones (33009)

        help candidates who will do the right thing without receiving kickbacks

        no problem, just_common_sense, just find some mythical super politician and we will be all set... I think they tend the unicorn fields, lets look there...

        • Yes, but some politicians are better than others. Giving money to the most corrupt politicians is worse than doing nothing.
          • by idontgno (624372)

            Giving money to the most corrupt politicians is worse than doing nothing.

            I think you're right. The real problem with buying a corrupt politician is that they don't stay bought. You never really buy a politician; you "rent" them or "license" them, and if you don't pay the ongoing license fee, someone else will. And even if you do, you may be outbid.

            Another swimming example of the genius of the free market.

            • by CodeHxr (2471822)

              Another swimming example of the genius of the free market.

              I don't think this represents a "free market", but that people will sneak around and break the rules for their own benefit if there's a reasonable chance they won't get caught or, if they do get caught, the penalties are sufficiently minor. I do it. They do it. I'd wager that everyone does it from time to time. As far as I can tell, it has to be a part of our instincts, otherwise there's no rationale for it. It's not a survival tactic - politicians are well paid (compared to minimum wage employees as op

          • by Genda (560240)

            The problem is, you can't complain about the whores because we built the whorehouse. You can shut it down. You can regulate the shady ladies, in the hope that they won't spread something awful. You can keep the Johns away (read lobbyists.) In the end, as long as you run your political system like a whorehouse, you can't be surprised that what shows up, are whores.

      • by Jeng (926980)

        use it to help candidates who will do the right thing without receiving kickbacks

        Got a list?

      • by Genda (560240)

        That's bribery. If you've got money to spend, use it to help candidates who will do the right thing without receiving kickbacks.

        You apparently have no concept of how politics work. Businesses create an ever growing cycle of expense for Politicians to buy ever more sound bites to persuade the mouth breathing masses that they are in fact the son of Gawd, and should be their next king. The drooling masses elect their temporary king via Pavlovian stimulus through their social opinion receptacles and the new king spends the next 4 years fellating his/her corporate masters.

        To break the cycle you would have to;
        1. Separate corporation and

      • That's bribery. If you've got money to spend, use it to bribe candidates who will do the right thing without receiving kickbacks.

        FTFY

    • by gbjbaanb (229885)

      no, its to take away their votes. They can get gobs of money any time they like for all kinds of pork barrel projects and lobbyist favours... but only if they're in power. Threaten to take that away with a huge internet campaign saying they are useless fools and they'll do everything they can for you.... and then go back to their usual practices, but you'll have won a small concession from them first.

  • by Jane Q. Public (1010737) on Wednesday June 20, 2012 @12:26PM (#40386619)
    In a day when even the courts are questioning the validity of the very concept of software patents, EFF should be taking up this issue. Instead, they are lobbying for "shorter durations"???

    Boo, hiss. EFF, I expect a lot more from you guys.
    • You make a good point.. that they should be pressing the advantage here, but does it really hurt to also take this approach as a Plan B?

      • shorter terms is a good waypoint to scrapping them entirely

        besides 90 days is a good length of time right??

        • I had thought that multiple changes would help... software/process/design patents limited to 5 years (not that I think any of them are really valid, but hey)... Increase the file/refile fees to be more in line with the cost of actually researching a patent application. Don't have reduced fees for re-filing... limit to 5 re-filings. Annual license fees for software/process/design patents. Also, a simpler process to call a patent into review by the community... perhaps, again with a review fee towards th
    • by KermodeBear (738243) on Wednesday June 20, 2012 @12:40PM (#40386825) Homepage

      If you can't get what you want, you have to settle for a compromise... With the hope that you can ultimately make it to your final destination at some later point down the road.

      The legal system - hell, ANY big system - doesn't like sudden, drastic change. But lots of little baby steps? People won't even notice if you do it correctly.

      • by Hatta (162192)

        The legal system - hell, ANY big system - doesn't like sudden, drastic change.

        Declaring math patentable is a sudden drastic change. The legal system likes sudden drastic change just fine when the change benefits the powerful.

        • Mod up. This is precisely the point. Until very recently software basically wasn't patentable. And since it became so, it has caused huge, huge problems.

          Put it back the way it was before, and cover software by copyright, but not patent, and most of these problems simply go away.
      • by melikamp (631205)

        No-no, EFF really struck out on this one. I want the patent system reformed as much as the next guy, but I can't in good conscience consent to wide classes of algorithms being patentable. I am not signing any part of that and I am letting them know. It is beyond doubt that virtually all the software we have today was developed without patent protection. How much more do we expect to gain by handing out monopolies? For the most expensive type of software, a general purpose OS, we have Windoze, OS X, FreeBSD,

      • by TubeSteak (669689)

        If you can't get what you want, you have to settle for a compromise... With the hope that you can ultimately make it to your final destination at some later point down the road.

        Big Business has been asking for the universe and settling for the galaxy.
        Your (and the EFF's) compromise is very short sighted.

    • by Qwertie (797303)

      First of all, reducing terms from 20 to 5 years would reduce the effect of software patents by 75% all by itself.

      And they *are* lobbying for more than shorter durations. The EFF's 7 suggested points, taken together, would remove most of the remaining effect of software patents. Like most of us software developers, I expect the EFF would support complete elimination of software patents, but given how patent-friendly Washington is, perhaps they thought it would be a more effective strategy to lobby for weaker

      • "First of all, reducing terms from 20 to 5 years would reduce the effect of software patents by 75% all by itself."

        I don't look at it quite that way. The harmful effect isn't minimized, it's just shortened. Not -- quite -- the same thing.

        "... perhaps they thought it would be a more effective strategy to lobby for weaker patents instead."

        But my point was: with the courts already questioning their validity, it seems to me EFF should strike as hard as they can, "while the iron is hot", as they say. Rather than back off and push for a "compromise" that nobody wants.

    • by lcrocker (144720)

      Couldn't agree more. Legitimizing the concept gets in the way of what should be the real goal of complete abolition. Software patents can and should be eliminated entirely, not "reformed"

  • by WaffleMonster (969671) on Wednesday June 20, 2012 @12:39PM (#40386797)

    I think what might be interesting is to develop a database of prior art/ideas. With thousands of people submitting everything they can think of every conceviable obvious aggregation of technologies any patent application would be required to be checked against the database and rejected if someone else already dreamed of it before the application was filed.

    The database would be run by the patent office or it would incorporate cryptographic and distributed features allowing timestamps and content to stand up to any challenge.

    Companies not wishing to pay the patent tax might seek to use it in a bid to prevent others from filing first and locking up the same blatently obvious ideas for the next 20 years.

    • by reebmmm (939463)

      Tongue mostly implanted in cheek with this response. // I will probably get modded a troll, but I should note that people regularly propose ideas like the parent failing to recognize that it doesn't really move the needle on this issue.

      I think what might be interesting is to develop a database of prior art/ideas

      It's called the patent office. They have a huge searchable database of this stuff. They're called patents and patent applications.

      With thousands of people submitting everything they can think of ev

      • It's called the patent office. They have a huge searchable database of this stuff. They're called patents and patent applications.

        The idea is minimizing barrier to entry. Patent applications are not free and require work and a skillsets inaccessable to everyone.

        Also, pretty much any publication can serve this purpose.

        If scouring the world for prior art is not done properly say by an overworked or lazy patent clerk the patent is issued and damage is done. Barrier and cost to fighting might as well be infinite if your not a large corporation with a dedicated legal team.

        Almost any publication system would survive a legal challenge. Few people fight over publication date if it's apparent from it's face. The only real issue is determining whether the publication was to be public and readily accessible.

        Except any legal challenge against any patent costs too much time and treasure. If you ever need to go there you've alread

    • Aside from the database of issued patents and patent application publications, the USPTO also has access to searchable abstracts for Japanese and European patents. We also have a database of previously internal publications that IBM published mostly back in the 1970s and 1980s. Plus, we subscribe to a variety of tech journals, most importantly everything IEEE has to offer.

      The best way to help is to come up with better ways to index and search these documents. The search engine for patents and pubs is act

  • I want a law that: - Force that all source code of commercial software products must be allowed for inspection of the customer (source code under the license the manufacturer wants). - Allows abandomware to be use legally. - Force the release of abamdomware (discontinued software) source code under an open source license.
  • But ultimately this is still pro-software patent, they just try to modify the existing rules somewhat.

    • by Githaron (2462596)

      But ultimately this is still pro-software patent, they just try to modify the existing rules somewhat.

      It is better than nothing. One step at a time. You don't get a statue by smashing rocks with a bulldozer. You get it by breaking away rocks chips until the statue is realized.

      • Smashing the statue is the only right thing to do here. Building another, smaller one doesn't help.

        • by Githaron (2462596)
          The statue was supposed to be a representation of the ideal. We currently have rocks. We want a statue. If you smash the statue, you are back to rocks.
  • So a big company with the HR resources to fast-track an implementation of an idea it rips off an individual inventor would have the advantage...
  • by noobermin (1950642) on Wednesday June 20, 2012 @01:05PM (#40387135) Journal

    Do you all live in the real world or has the dark of the basement really cut you off from outside too long? If they outright try to lobby for radical change to the system it won't get passed and the naysayers will be emboldened and any hopes of change will be harder to accomplish. At least the last point, research whether they help in the first place, sets groundwork for proving whether they help.

    FFS, lasting revolution doesn't happen overnight, sometimes the wiser thing is to change things slowly and smartly.

  • by reebmmm (939463) on Wednesday June 20, 2012 @01:39PM (#40387577)

    I've said before, in other threads, that I'm a patent attorney. I have my undergrad degree in CS. I have an ill view of many patents that are litigated. That's not to say there's no innovation happening in the software world, or that there's nothing worthy of protection.

    Nevertheless, I generally think that the EFF's proposals here are misguided. Taking them one by one:

    1. A patent covering software should be shorter: no more than five years from the application date.

    Part of the problem in the first place is that it some times takes longer than 5 years to even get a patent. Most of the term of a patent (under this scheme) would be consumed with prosecution. It doesn't account for the Patent Office.

    If the patent is invalid or there's no infringement, the trolls should have to pay the legal fees.

    On board with this one, but it doesn't go far enough.

    We really should be talking about fee shifting more generally in the case of a patent owner that fails to do their own diligence, but rather is seeking to extract nuisance money or impede lawful commercial activity.

    Patent applicants should be required to provide an example of running software code for each claim in the patent.

    This doesn't address the real problem. The real problem is when old claims are read to cover future technologies that they didn't not have possession of at the time the application is filed.

    In a non-software example, it would be like a patent claim that covers something no larger than "a micrometer" before "nanometer" manipulation was available.

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

    There is already a prior user defense baked into the most recent patent reform bill.

    Patents and licenses should be public right away. Patent owners should be required to keep their public records up-to-date.

    Patents are. Most patent applications are public within 18 months of filing too.

    I'm not sure why a license must be public. That's just a contract between two people.

    I'm also not sure what public records they're referring to. It could be that patent assignment records aren't "up to date." (http://assignments.uspto.gov/assignments/?db=pat). I could get on board with requiring those be up to date.

    The law should limit damages so that a patent owner can't collect millions if the patent represented only a tiny fraction of a defendant's product.

    That's all relative. Besides, plaintiffs still need to prove damages. Defendants still have an opportunity to rebut those damages.

    Congress should commission a study and hold hearings to examine whether software patents actually benefit our economy at all.

    I bet you can predict how that'll turn out. In any case, doesn't move the needle much.

  • IMO the problem with software patents is that there is no way to know if your software infringes one.
    Only #4 "Infringers should avoid liability if they independently arrive at the patented invention." even comes close to addressing the problem.

    My suggestion is this;
        Any computer built more than 1 year prior to the filing date of a patent, does not infringe that patent, regardless of how it is programmed.
        Likewise any software that runs on a computer built more than 1 year prior to the filing date of a patent, does not infringe that patent.

    Note that a strong argument can be made this is already true. I think we should lobby for a law that spells it out explicitly.

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