Why Is the U.S. Solicitor General Trying To Change The Law To Benefit Patent Trolls?

For more than two decades now, developers and users of software have been plagued by a flood of bad patents. Software patents that describe everyday practices like watching an ad online, publishing nutrition information, meeting people nearby, or teaching a language class continue to be issued, and low-quality patents get used in hundreds of lawsuits every year.

Government officials should be working to reduce, not increase, the burden that low-quality patent lawsuits impose on innovators. So we’re concerned and dismayed by recent briefs filed by the U.S. Solicitor General, asking the Supreme Court to reexamine and throw out the best legal defenses regular people have against “patent trolls”—companies that don’t make products or provide services, but simply use patents to sue and threaten others.

A Sensible Framework Worth Keeping

To truly stop patent trolls, we’ll need wholesale reform, including legislative change. But the current framework of rules governing Section 101 of the U.S. patent laws, including the Supreme Court’s 2014 CLS Bank v. Alice decision, were important victories for common-sense patent reform.

The Alice decision made clear that you can’t simply add generic computer language to basic ideas and get a patent. The ruling has been consistently applied to get the worst-of-the-worst software patents kicked out of the system. For the most part, it allows courts to state, clearly and correctly, that these patents are a form of abstract idea, and should be thrown out at an early stage of litigation. A win under the Alice rules spares the targets of patent trolls not just from an unjust trial, but from an invasive and expensive discovery process, fueled by a patent that never should have been issued in the first place.

The Alice ruling, combined with another Supreme Court decision called Mayo Collaborative Services v. Prometheus Labs, has been a big step forward. EFF’s “Saved by Alice” project highlights how small businesses have protected themselves from trolls, when patent law was on their side.