Unfortunately, when it comes to patents and innovation policy, the EFF has chosen to side with giant technology corporations and technology implementers, not individual inventors or innovators.
The Electronic Frontier Foundation (EFF) is at it again, this time with what they refer to as a Save Alice campaign. The EFF does not like the Revised Patent Eligibility Guidance published by the United States Patent and Trademark Office (USPTO) in January 2019 and is charging USPTO Director Andrei Iancu with attempting to subvert the United States Supreme Court and essentially ignore Alice v. CLS Bank.
These assertions are bogus, and truthfully, they are hardly worth the consideration of thoughtful individuals interested in a meaningful dialogue about the state of the U.S. patent system. Director Iancu has issued guidance that strictly follows exactly what the Supreme Court ruled in Alice, period. Over the years patent examiners, Administrative Patent Judges, district courts, and the Federal Circuit have dramatically expanded Alice. It was admitted in Alice that the “invention” could be coded over a weekend by a second-year college student, which means it was extremely trivial and not innovative.
Yet, Alice has been used to find many substantial and innovative software systems and platforms patent ineligible. Alice has grown well beyond anything actually written in the text of the decision, and the test (if you can call it that) endorsed by the Federal Circuit is so subjective it allows the decision maker to reach whatever result is desired, untethered to any objective reality. Thus, Director Iancu and the Patent Office reviewed numerous decisions for threads and clues and fashioned an objective test that is both solidly true to the Supreme Court’s decision in Alice and to the Federal Circuit’s most recent decisions. Anyone that says otherwise is simply lying or misinformed.
Such a conspicuous attempt to gain attention in an outrageous and obviously erroneous fashion is the type of stunt the EFF has become known for over the years. Brazen, blatant, noticeable—and wrong.
The problem is the EFF is an organization that is afforded unearned respect by the media and others. Thus, when the EFF so egregiously goes off the rails, even when it is a flagrant foul that is a part of a shock campaign, it must be called out for what it is—complete and utter nonsense.
This also provides an opportunity to expose the fundamental hypocrisy of the organization. Had a pro-inventor or pro-patent organization created a website with a form e-mail that supporters could send with one click, and encouraged flooding the USPTO with support for the Revised Guidance, what would the EFF have said? The real troll in this story seems to be the EFF, and they are trolling the USPTO, encouraging those with at best first level information on the issues to flood the USPTO with the same comment, which says nothing substantive whatsoever but accuses the Office of attempting to distort Supreme Court precedent inappropriately.
It is ironic that the EFF now plays the part of the troll; few organizations over the past decade have been more responsible for the myths and lies about innovators than the EFF. Indeed, on their own website they define a patent troll as those who do not create new products or new ideas, but instead resort to litigation to protect the rights that technology users are infringing.
First, ideas are not patentable now, and they never have been patentable. If the EFF is concerned with the USPTO having made mistakes there are a wide variety of mechanisms available to concerned citizens and organizations, as well as those directly affected by what are believed to be overbroad rights. None of these mechanisms relate to Alice. So, it is complete folly if not direct and intentional misrepresentation to suggest that Alice is somehow necessary in order for there to be a mechanism to correct errors made by patent examiners. Alice does not even deal with process or procedure.
Second, the creation of a new product is an important step in bringing a new product to market, but it represents the last mile. The EFF and others who seek to exalt those that take products to market either ignore or belittle the extraordinary effort and substantial investment necessary to create the underlying technologies that make it possible to actually create the product or service that the technology implementing companies will turn into a new product or service.
For example, 5G has been in development for many years and several critical innovating companies, such as Ericsson for example, have already spent many billions of dollars researching and developing the technology so that communications companies will be able to soon, perhaps within 2 to 5 years, begin to roll out widespread 5G network connectivity. Obviously, the investment those communications companies will make to roll out the connectivity to consumers is important, but what about the decade or more of engineering, innovation and discovering that Ericsson will have engaged in leading up to that point? Will Ericsson somehow become a patent troll because they aren’t the ones rolling out the last mile in the commercialization process to the consumer? Absurd!
Finally, it is truly pathetic for the EFF—or anyone—to complain about patent owners filing lawsuits to protect and enforce patent rights. The number of patent infringement lawsuits has continued to decline, and those that do sue are compelled to file lawsuits because those technology implementers that infringe know they can do so with impunity.
The Efficient Infringement Calculation
The act of efficient infringement is the cold-hearted business calculation whereby businesses decide it will be cheaper to steal patented technology than to license it and pay a fair royalty to the innovator. Large entities realize there are a certain number of patent owners that are simply not going to assert their patents for one reason or another, frequently because they don’t have the money to do so. Then there is another group of those that will assert their patents but will not win. The calculation progresses to realize that there is a small group of those who are likely to assert and prevail, thanks to all the hurdles put in place (i.e., patent eligibility challenges, the PTAB, etc.). The calculation further recognizes that even if a patent owner prevails, a permanent injunction is virtually impossible to obtain as the result of the Supreme Court’s decision in eBay v. MerchExchange, and damages are likely to be minimal thanks to a continual judicial erosion in damages available to victorious patent owners who hold valid patent rights that have been adjudicated to be infringed.
Time to Recalibrate
According to the EFF website, the organization defends civil liberties and champions the privacy of individuals, free expression and innovation. It sounds like a wonderful organization. Unfortunately, for whatever reason, when it comes to patents and innovation policy, the EFF has chosen to side with giant technology corporations and technology implementers, not individual inventors or innovators who accept considerable risk and invest incredible amounts of time, money and energy researching and developing technologies that can then be usurped (i.e., stolen) by technology implementers at the end.
Perhaps the EFF should recalibrate and take a look at these issues through the eyes of innovators instead of being a puppet for the largest corporate entities in the world. Those patent robber barons are suppressing innovation, and that is the type of thing that, once upon a time, the EFF seemed to care about. How could an organization that was founded to protect the freedoms of individuals have strayed so far to the point that is virtually a wholly owned subsidiary of 21st century patent robber barons? The EFF is on the wrong side of history, and they are wrong, period.
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