As recently as 2010, Justice Kennedy seemed unaware that software patents were controversial.
The Electronic Frontier Foundation announced a new initiative on Tuesday to seek reform of the United States patent system. Under the banner of Defend Innovation, the civil liberties organization suggested seven ways Congress could make the patent system less harmful to progress in software.
EFF wants Congress to shorten the term of software patents to five years. It proposes the creation of an independent invention defense for firms that discover a patented technology independently of a patent holder. It wants to force losing patent plaintiffs to cover defendants' legal bills. And it suggests that damages be limited in cases where a patent accounts for only a small fraction of the value of a larger product.
But conspicuously missing from the list is the most direct and obvious way to solve the problem: exclude software from patent protection altogether. Instead of endorsing this option, EFF asks Congress to "commission a study and hold hearings to examine whether software patents actually benefit our economy at all."
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