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I/A 2.0 Session Summary - Changing the Conversation about Software Patents in a Post-SOPA World

Julie Samuels (Electronic Frontier Foundation), Timothy Lee (Ars Technica), Christina Mulligan (Yale Law School Information Society Project)

Before SOPA, we began to see increased attention on technology and policy in Washington D.C. The America Invents Act was the long awaited reform to patent law, but did it actually do anything? Many say no. With recent features in the mainstream media, like This American Life, and high profile cases such as Google v Oracle, Facebook v Yahoo, people have begun paying more attention to and discovering the impact that patents have on their lives. This open discussion, led by Julie Samuels, Tim Lee and Christina Mulligan, looked at strategies for overcoming problems surrounding software patents. In a post-SOPA world, how do we address increased threats to innovation from patent trolls and thickets?

A “one size fits all” patent system doesn’t work but changing the patent system will be a long process. The session leaders identified three main avenues for action: courts, Congress and DIY efforts from the community. These avenues for action, however, have various pros and cons. For example, the courts are obviously highly influential on IP policy but they don’t have a good understanding of software technology and software patents. In Bilski, Justice Kennedy stated that the community has accepted software patents as patentable subject matter; which is a notion that many in the community would likely disagree with. It’s important that we find some way to remedy this discrepancy, as antagonists are likely to take advantage of this misunderstanding.

In creating change, Congress has to be a key player. Congress creates the law but at the same time is highly influenced by lobbyists and industry. Much of the influence is not due to corruption, but rather a lack of information. In the everyday lives of politicians, there is an expectation that they are able to speak fluently on each issue as it arises. Understandably, members of Congress seek out “experts” to brief them, but more often than not, who they end up listening to often leads to an biased assessment of technology. When big companies act, Congress listens. We need to find ways to get more big companies to embrace a new set of norms with respect to software patents.

The above efforts are bringing change, but slowly. The people paying attention are innovators, consumers and activists. We’ve seen some movement on the DIY side, from places like Y Combinator and Engine Advocacy, demonstrating that people are coalescing around the promotion of innovation and the exchange of ideas. The question remains as to how these DIY efforts can use the lessons learned from SOPA to push forward improvements in the software patent world. Striking a chord within the community is critical, and we need to create positive stories and deliver concrete numbers to illustrate the real effects of poor software patent policy.