EFF's Defend Innovation Project: Analysis

  Earlier this week, the Electronic Freedom Frontier (EFF) launched the Defend Innovation Project, a tentative list of seven key patent reforms it believes will rectify many of the problems plaguing the U.S. Patent System.  The goal of this project is to garner feedback and ideas from inventors, software companies, lawyers, academics, and internet users, and then include this feedback and necessary updates into a final whitepaper to be delivered to legislators in Washington sometime in the future.

  While I have always been a big supporter of the EFF, I have to admit that this list failed to impress me.  It is a mixed bag of good ideas, counterproductive-but-well-meant notions of fairness, potential loopholes and abuse vehicles, and some downright silliness.  To show you what I mean, I'll go over each proposal and offer my thoughts, such as they are, on each.

  Disclaimer: I am not claiming to have the answers to these problems.  I simply mean to point out potential problems and concerns, and offer my opinions.  Really, though, I am in fact claiming to have the answers to the problems.

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

The Problem:  "A patent lasts for 20 years, beginning from the application's filing date. Often, the term is extended even longer to reflect the years it can take to obtain a patent. While 20 years might make sense when talking about inventions that take substantial investment—building factories and laboratories, for instance—software takes coders and computers. Hard work to be sure, but of a different type."

The Solution:  "A patent covering software should survive for a term of five years, beginning from the date the application is filed. Even though international agreements could be read to require a 20-year term, we think there are ways around this. For example, it’s not clear those agreements even apply to software. Also, the proposal could be limited to U.S. inventors only."

(source)

  In theory, this is a great idea.  The 20-year patent has no place in a scientific field that advances as rapidly and fluidly as does computer science.  For example, think of the operating system and software programs you were using in 1992.  Do you think there is a single shred of source code in Windows 3.1 that could be relevant to today's coders?  The 20-year software patent extends well beyond the potential usefulness of the software itself.  This is tantamount to a lifetime patent, when most software is considered an archaic, historical oddity within 10 years.

  My main problem with this proposal is the arbitrary selection of a five-year term.  The EFF includes no justification for this number - no studies or statistics to indicate that a five-year patent would achieve the goal of defending innovation.  In fact, there is plenty of reason to suspect that this patent term could hinder innovation.

  I've written extensively on my support of the Open Source movement, and I have no intention of backing down from this support any time soon.  However, I am not blind to the fact that the resources available to a community-based volunteer project are dwarfed by those available to software companies.  People who are paid to code for 40 hours a week are going to outperform people who volunteer to code on their own time, every time.  Even when they are the exact same people, as is usually the case.  A programmer with a day-job and a family is not going to be able to devote the same amount of time and energy into open source projects, even if he or she would like to do so.

  Lest we forget - patents came about for a reason.  Pharmaceutical companies are allowed to sell their drugs exclusively under patent for a specified amount of time, often at a premium when compared to generic equivalents.  Topically, this can be seen as a hindrance to medical progress.  After all, the cost of a potentially lifesaving drug can often prevent many people from obtaining it.  However, if they were not allowed exclusive rights to sell their work at a premium, how would they profit?  Another company could avoid the astronomical overhead costs of researching a new drug, and just skip right to underselling the researcher once they have completed the grunt work.  If this is the case, what is the motivation to dump millions of dollars into the research, development, and testing of new lifesaving drugs?  And if there is no motivation to develop new lifesaving drugs, where, then, will our new lifesaving drugs come from?

  I don't mean to defend the greed of the pharmaceutical industry.  Well, actually, I mean precisely to do that.  Self-interest is the only interest of a corporation, and for the overwhelming majority of human beings, this holds true as well.  If a software company loses the financial motivation to develop a new product, then the product will likely not be developed.  Innovation needs to be protected on both sides - from the overreach and abuse of patents by trolls and such, but also from the loss of financial gain that motivates many innovations in the first place.

  This is a balancing act, which must take into account:

1. The time requirement for rights-exclusivity necessary for a company to benefit financially from internally funding innovation, 
2. The utility lifespan of an innovative product;  I.e. at what point does the software become archaic to innovators, especially in the open source community?

  Rather than arbitrarily defining a shorter time-span for software patents, I would like to see this proposal suggest studies and funding vehicles to try and determine the optimal patent time-span based on the issues defined above.  In this way, an informed decision can be made, and the right solution to the problem can be found.

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