President Barack Obama is no fan of patent trolls, calling them extortionists who "hijack somebody else's idea" during a Google Hangout earlier this year. Tuesday, Obama announced five new executive actions taking aim at patent trolls across the board. Advocates for patent reform say one of his orders should have software patent trolls in particular running for the hills.
The second of Obama's five executive actions on patent trolls issued Tuesday targets functional patent claims. Functional claims grant patent rights to a device that performs a certain function, rather than over how that function is actually performed.
Matt Levy, patent counsel at the technology industry advocacy group Computer and Communications Industry Association (CCIA), explains:
As an example, suppose I came up with an idea for a car with a gas-electric hybrid engine, but where the battery for the engine is recharged by a passenger pedaling a built-in stationary bicycle. But my patent claim is broader than that; I claim "A motor vehicle with a gas-electric hybrid engine comprising a storage battery, wherein the storage battery is recharged using a mechanically-powered generator." It's an accurate description, although it doesn't include the specifics of what I invented. By describing the invention in terms of its functions, that is, its general features, my patent omits what should be an important limiting detail: my invention is impractically pedal-powered.
Functional claims are legal, but they're supposed to be "restricted to the invention that's described in the specification only," Levy told Mashable. "And that's important, because it narrows the scope of those sorts of patents," said Levy.
Patent trolling existed before software became a multi-billion dollar industry. However, software patent applicants have increasingly been granted broad functional claims patents. That's opened the doors for a cottage industry of software patent trolls who patent general concepts rather than specific processes, then sue innovators with vaguely similar ideas for settlement money instead of selling a product.
Obama's order, wrote Electronic Frontier Foundation Staff Attorney Julie Samuels, should reduce software patent trolling by "requiring patent applicants to explain their inventions better and to limit those inventions to a specific way of accomplishing a task, as opposed to all ways of accomplishing a task." CCIA Vice President Joshua Lamel called it a "step in the right direction."
For some, however, Obama's order may not go far enough — there's a vocal camp of reformists who argue software patents should be abolished entirely.
"In my view, the solution is straightforward: software shouldn't be eligible for patent protection," wrote technology policy blogger Timothy B. Lee in a post calling on the Supreme Court to abolish software patents when the issue arose two years ago.
When asked if the EFF supports abolishing software patents, Samuels told Mashable the EFF "is in the camp that we think software patents should get out of the way of innovation. If that means abolishing, then yeah they should be abolished. If that means there are other ways to get at that reform, then we want to get that reform."
Santa Clara University School of Law Assistant Professor Colleen Chien, who is nationally renowned for her research on patent law, told Mashable Obama's order is a good move even if it doesn't rid the country of software patents.
"Even though the actions don't go so far as abolishing software patents, this particular action will be very powerful in curbing the use of overly broad patents," she said. The CCIA, for its part, does not support abolishing software patents.
Obama's software patent positions are rankling some of the world's biggest software companies, however. Microsoft, which generates billions of dollars annually from its thousands of patents, is unhappy with Obama's suggestion to Congress that it allow a "wider range of challengers" to petition for review of already-issued patents.
"If enacted, this provision would create a discriminatory legal standard for software inventions, putting at risk jobs and innovation in the technology and manufacturing sectors of the economy," wrote Microsoft Deputy General Counsel and Corporate Vice President for Legal & Corporate Affairs Horacio Gutierrez in a blog post.
It's exactly this back-and-forth, though, that some reformists want.
"One thing we think is missing and what we would really like to see is a more robust conversation about patent trolls," said the EFF's Samuels. "The root of the patent troll problem is crappy software patents. We need to be talking more about whether we should have those patents, why they make sense, if we're stuck with them more ways to fix it."
Image via Chip Somodevilla/Getty Images
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