Engine On-Air Episode 1: The Software Patent Problem


For our inaugural podcast, dedicated to understanding ideas and issues important to startup community, we tackle the patent system: where we’ve been and where we’re going.

To help us unravel this issue, Mike McGeary is joined by Julie Samuels, EFF Staff Attorney and Mark Cuban Chair to Eliminate Stupid Patents, Ed Goodmann, Engine Policy Analyst, and Tim B. Lee, tech blogger at the Washington Post.

To start, Julie walks us through the basics of how the patent system is supposed to work, and why -- for software -- it just doesn’t anymore. The problem? The current system is a one size fits all solution applied across all industries, despite the enormous differences between, for example, Pharmaceuticals and Software. Julie then discusses the problem of the “patent troll” -- how hundreds of thousands, if not millions, of vague, broad and impossible to understand software patents have given these bad actors oxygen, and what can and should be done about it.

With quantifiable economic drag (patent litigation is one of the most expensive types due to its technical complexity and the challenges of explaining the issues to a jury), and an unquantifiable chilling effect on would-be inventors, we desperately need a solution to this problem. While it’s clear that there is no single silver bullet, there are still a lot of good proposals emanating from the Capitol to be excited about.

Ed, our very own policy analyst is next in the hot seat, and he gives us a little more insight into some the suggestions being discussed -- from the administration’s legislative recommendations to Representative Goodlatte’s omnibus discussion draft. Despite a usually fractious Congress, there seems to be much agreement between policymakers over possible solutions. In particular, there appears to be particular appetite for fee shifting and bonding to increase the disincentive for those suing, and for protecting the end user from litigation. As for reforming existing law, many members are working to expand the covered business method review for bad patents, as set out in the 2011 America Invents Act.

As our final guest, Tim takes on the question of how all these software patents came about in the first place. The short answer? A huge shift in the treatment of patent law by the federal circuit court in the 1990s. All of a sudden, afters years of caution, the court began to grant patent coveting business methods, and it all went downhill from there. Tim also explains how the explosion of patent litigation is no longer a niche tech issue, and he raises some questions for further discussion. Are there state level solutions? Should we stop granting software patents, or should there be a stricter granting process? Should jurisdiction over patents be shared with ordinary appeals courts?

While we continue to explore the issues, and Congress continues to discuss the possible solutions, you can and should take action and get involved. Call your Senator or Representative, tell your story, and give this problem a human face. If you've come face to face with a patent troll, you can also visit Trolling Effects to learn more and upload your demand letter. The problem is big and everyone is paying attention. Now is the time when your actions can make a difference. Listen to the podcast here and stay tuned.