The EFF is Patently Wrong

By Michael Borella --

The Electronic Frontier Foundation (EFF) is at it again, gaslighting the public in its ongoing crusade against patents.  While the EFF does perform some commendable work, mostly in the areas of individual privacy rights, its track record on patents amounts to little more than a hit job.  In particular, the EFF has few qualms with providing heavily slanted opinion pieces on patent policy and making statements that are misleading or outright wrong.  This is nothing new, unfortunately.

The EFF's latest screed covers Senator Tillis' recent proposed legislation to reform 35 U.S.C. § 101, but is full of falsehoods, deceptiveness, and bias.  It was written by Joe Mullin, a former journalist and current policy analyst for the EFF.  As far as I can tell, Mr. Mullin is not a patent attorney and has never practiced patent law.  His EFF job title is "Mark Cuban Chair to Eliminate Stupid Patents" (you can't make this stuff up), which pretty much says all you need to know about his positions.

So let's go through Mr. Mullin's article, line-by-line, categorizing each based on where it falls on a spectrum ranging from mostly true to deceptive to false.  Hint: very little he writes comes close to being mostly true.

"A recently introduced patent bill would authorize patents on abstract ideas just for including computer jargon . . ."

False.  Frankly, this statement is almost too vague to be meaningful.  But if Mr. Mullin is referring to just adding processors, memory, and the like to claims otherwise involving a business, mathematical, or mental process, the Tillis bill would still result in such inventions being unpatentable.

". . . and would even legalize the patenting of human genes."

Deceptive.  The Tillis bill would make unmodified human genes (e.g., those appearing naturally in the human body) unpatentable, but would allow patenting of genes that are "isolated, purified, enriched, or otherwise altered by human activity."  In other words, if you do something new and inventive with a human gene, then the result of labor by human hands might be patentable.

"The 'Patent Eligibility Restoration Act,' sponsored by Sen. Thom Tillis (R-NC), explicitly overrides some of the most important Supreme Court decisions of the past 15 years, and would tear down some of the public's only protections from the worst patent abuses."

False.  The public has many protections from those trying to unethically exploit the patent system that the Tillis bill would not touch.  Like the other parts of the patent statute that define additional requirements for patentability.

"Pro-patent maximalists are trying to label the Tillis bill as a 'consensus,' but it's nothing of the sort."

Deceptive.  And likely a straw man argument.  "Pro-patent maximalist" is a made up term that remains undefined and meaningless.  Therefore, it is irrelevant to attribute any particular viewpoint to this hypothetical group of people.

"We need EFF supporters to send a message to Congress that it isn't acceptable to allow patent trolls, or large patent-holders, to hold our technology hostage."

Deceptive.  Non-practicing entities (let's call them that rather than the pejorative term "trolls") and large patent holders do not hold technology hostage.  Anyone is permitted to file patent applications on inventions they wish to protect.  If granted, they have approximately 20 years to exclude others from practicing the invention in return for publicly disclosing the fruits of their labors.  This is a carefully-designed quid-pro-quo, not a hostage negotiation.

"Starting in the late 1990s, the U.S. Court of Appeals for the Federal Circuit essentially did away with any serious limits on what could be patented.  This court, the top patent appeals court in the U.S., allowed patents on anything that produced a 'useful result,' even when that result was just a number."

False.  Claims that are not directed to novel, non-obvious, and properly described inventions have been unpatentable since at least 1952 if not the earliest days of our republic.  In the 1990s, the Federal Circuit clarified that the broadly-drafted § 101 included certain types of business methods, thereby making such business methods patent-eligible.  But these inventions still needed to satisfy the other statutory requirements of patentability, which are indeed "serious limits" that prevent the patenting of just any useful result.

"This allowed for a period of more than a decade during which the U.S. Patent Office issued, and the courts enforced, all kinds of ridiculous patents."

Deceptive.  Again, a vacuous statement.  The USPTO has always issued patents that it should not and still does.  The USPTO also makes it unduly hard to obtain patents on legitimate inventions.  There is no such thing as a ridiculous patent, only patents that are valid and those that are invalid.  And making this determination requires more work than just reading the title or abstract.

"Several Supreme Court decisions eventually limited the power of bad patents."

Deceptive.  Another ill-defined characterization.  Yes, the Alice Corp. v. CLS Bank case, among others, made it harder to obtain certain types of patents, including vaguely-claimed business methods as well as many that represent legitimate technical inventions.

"Most importantly, the Supreme Court's 2014 Alice Corp. v. CLS Bank decision made a clear rule—just adding 'on a computer' to an abstract idea isn't enough to make it patentable."

False.  First of all, this is a poor characterization of Alice, as the rule is much more nuanced than that.  But the larger issue is that the Alice decision is notoriously vague, confusing and unworkable in practice.  Eight years later, the Federal Circuit judges still argue about what it means and how to interpret it -- and these are not minor disputes.  The distance between their positions on Alice can be measured in astronomical units.

"The Alice Corp. decision was not a panacea.  It did not eliminate the serious problem of patent trolls—that is, companies that have no products or services, but simply sue and threaten others over patents.  But it did put a big dent in the patent trolling business.  Vaguely worded software patents can still be used to extort money from software developers and small businesses.  But when those patents can be challenged in court, they now rarely survive."

Mostly True.  Well, finally something that Mr. Mullin and I almost agree about.  But why the negative view of software patents?  The modern economy is largely driven by software, so protecting the rights of innovators from copyists and efficient infringers should be important to a policy analyst.  Besides, is software inherently horrible?  Why not pick on inventions using plastic instead?

"That's been a huge benefit for individuals and small businesses.  Our 'Saved by Alice' project details the stories of several small businesses that managed to overcome unjustified patent troll demands because of the Alice Corp. precedent."

False.  A recent paper by Mark Lemley and Samantha Zyontz concludes that "[once in court] the entities most likely to lose their patents at this stage are not patent trolls but individual inventors and inventor-started companies."  Oops.  Further, the Saved by Alice project currently lists just nine stories -- this is anecdotal evidence at best and is not statistically significant.

"It's now been eight years since the Alice Corp. decision, and judges have thrown out hundreds of bad patents that couldn't stand up to this test.  It's likely that many more bad patents have been abandoned because their owners know they can't keep using them to threaten people.  The patents knocked down by Alice Corp. include [list]"

Deceptive.  Once more, whether a patent should be considered "bad" is subjective.  Further, Mr. Mullin complains about aggressive litigation tactics, which is a separate issue from whether a patent should or should not have been granted.

"Ten years ago, there weren't effective legal mechanisms to throw out the worst types of patents.  If someone targeted by a patent troll felt the patent was wrongly granted, they'd likely have to pay millions of dollars in patent litigation costs just to take their chances in front of a jury."

False.  Even ten years ago, few patent cases made it to jury trial.  Many cases were effectively decided by a judge's Markman ruling or on summary judgment.  And cases with poorly-drafted complaints could be dismissed on the pleadings.  Further, we are less than one month away from the ten-year anniversary of when the USPTO's inter partes review (IPR) proceedings began, a process that can be used to pause litigation while the USPTO reevaluates the validity of a patent.

"The Tillis bill will make it easier to use exactly the types of weak, overbroad patents that often threaten startups and small businesses."

False.  The bill's text is vague enough that it could end up being a codification of some of the worst aspects of Alice (the ones that Mr. Mullin probably likes), such as the USPTO refusing to grant patents on innovative technologies and courts invalidating patents based on nonsensical reasoning.

"Since the Alice Corp. decision, it's much harder to demand money using questionable patents.  That's why patent trolls, among others, don't like the decision, and would like to see a bill like this pass to override it.  But the Senate should not grant this wish."

Deceptive.  It is harder to stop infringement of any patent thanks to Alice, because that case and the Federal Circuit's expansion of the exclusions to eligibility made it easier to invalidate patents, period.  Overruling Alice would be a step in the right direction but the Tillis bill falls short.

"The Tillis bill encodes a version of the old rule that virtually any kind of 'business method' is worthy of a patent.  It explicitly allows for patents on 'non-technological economic, financial, business, social, cultural, or artistic process,' as long as those are embodied in a 'machine or manufacture.'  In other words, you can take basic human 'methods' of doing business, or even socializing, and just add a generic purpose computer (or another machine).  The Tillis bill does specify that the machine must do more than 'merely storing or executing,' but that's an unclear if not meaningless narrowing.  That will merely allow patent lawyers to avoid using those exact verbs—'storing' and 'executing'—when they're writing patents.

Deceptive.  If it were only that easy.  This provision of the bill is unclear and if passed as is, the courts (especially the Supreme Court) are likely to call upon stare decisis to keep things as they are under Alice.  In fact, I have yet to hear from a patent attorney who can describe what is or is not patentable based on the proposed language.

"Software patents are drafted by patent lawyers, who have come up with a lot more ways to describe manipulating data than just 'storing' and 'executing.'  To take just one of the stupid patents above, the first claim in the Ultramercial ad-watching patent described an Internet-based process of 'receiving' media products, 'selecting' a sponsor message, 'providing' the media to the public for sale, 'restricting' general access, 'facilitating' display of the ad, 'recording the transaction,' and also 'receiving payment.'"

Deceptive.  The term "stupid patent" is just as vacuous and overused as the term "bad patent".  If you don't like it, just say so.  There is much more to the Ultramercial claims, which should have been deemed patent-eligible as they materially change a technological process.  Also, all of the verbs that Mr. Mullin lists are not magic words that suddenly make unpatentable claims eligible for patenting.  If there is anything that we have learned over the eight years since Alice, it is that there is no rote procedure for drafting successful software claims when the evaluation of said claims is largely subjective.

"The Tillis bill even implicitly authorizes patents on a 'mental process,' saying the only kind that wouldn't be eligible is one that takes place 'solely in the human mind.'  That would seem to imply that even adding trivial steps like writing things down or communicating information could make a 'mental process' patentable."

Deceptive.  The problem with the current mental process exclusion to patentability is that literally everything that a computer does boils down to a handful of calculations performed by a microprocessor.  Theoretically, a human could perform these operations in their mind, though too slowly to be practically useful.  Nonetheless, mental process doctrine has been used to refuse applicants patents on otherwise innovative and complex software inventions.  Machine learning, a particularly critical competitive technology for the U.S., is often targeted in this fashion.

"If Congress passes the Patent Eligibility Restoration Act, it will destroy one of our best safeguards against abusive patents.  The Tillis bill will give an explicit green light to the most aggressive patent trolls, the funders of their litigation, and the attorneys who work for them.  They'll get more outrageous business method patents, and use them to demand payments from working software developers."

Deceptive.  As noted above, it is quite unclear whether the Tillis bill would have this impact, and aggressive litigation is an orthogonal issue with respect to patent eligibility.  Limiting the scope of what is patentable would make it harder for bad faith actors to disrupt software companies, but it would also prevent small companies from stopping the giants from stealing inventions.  The sword is double-edged, so let's be honest about how it cuts both ways.

Mr. Mullin goes on to criticize the bill's partial codification of Association for Molecular Pathology v. Myriad Genetics, in that it prevents unmodified natural DNA from being patented but allows the patenting of certain modifications.  I'll leave rebuttal of his claims in this area to my learned colleagues with advanced life sciences degrees (something that neither I nor Mr. Mullin have).

While everyone is entitled to their opinions and adversarial debate can be a healthy predecessor of progress, Mr. Mullin's unsupported claims, playing loose with the facts, and outright falsehoods are dangerous.  A layperson reading Mr. Mullin's article might assume that it is easy to get a broad patent granted on something that you did not invent.  This is not the case.

In the patent community, we have a duty to accurately represent the current state of the law, as well as the potential unintended consequences of proposed litigation.  In this way, policymakers can reach informed conclusions based on rational debate rather than sky-is-falling histrionics.  Taking advice from someone who touts being the "Chair to Eliminate Stupid Patents" is ill-advised if the goal is to avoid glaring bias.

Comments

[Easwaran]

You're doing yeoman's work. Thank you!

[Greg DeLassus]

Two brief responses:

(1) I know that there has been concern (as Mr. Borella expresses above) that the Tillis bill does not adequately address some of the issues that have emerged from Mayo/Alice, but I take comfort in the fact that the EFF opposes the bill. If it really codifies the worst excesses of Alice, the EFF would support---not oppose---the bill.

(2) I have dim hopes of this or any other legislative fix, however, so long as the patent community insists on making the perfect to be the enemy of the good. Over on IP Watchdog[*], folks are cheering on the EFF. These are not anti-software patent folks, but rather *pro*-software patent folks, who consider the bill to be unsupportable. They wish to make common cause with EFF, because they will not support anything short of a perfect bill.

Perfect bills, however, do not arrive often. It is easier to achieve progress towards a saner state of patent law by small steps in the right direction than by one, single wonderbill that sets all wrongs aright. So long as the pro-patent community insists on torpedoing anything short of their Platonic ideal of a patent reform, the EFF is always going to get their wish (i.e., preserving the status quo).

* https://www.ipwatchdog.com/2022/08/22/eff-vows-take-tillis-eligibility-bill/id=151004/

[skeptical]

Mr. DeLassus - please note that any "agreement" is based solely on the Tillis bill being a Trojan Horse when it comes to innovations featuring software.

This is NOT a case of "letting the perfect become the enemy of the good."