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The EFF-Recommended Advice on Patents From Juelsgaard/Stanford Law School Potentially Worse Than Useless

Posted in EFF, Patents at 8:35 pm by Dr. Roy Schestowitz

Not proposing the end of software patents but something akin to OIN, which shields or cements them

Julie Samuels
Image extracted from this video

Summary: Having been bankrolled by a billionaire, Mark Cuban (said to be worth US$3 billion, based on Forbes), the Electronic Frontier Foundation pursues a patent approach that would further empower large, rich corporations, not small companies

“A guide to alternative patent licensing,” wrote the EFF today, was “produced by the Juelsgaard Intellectual Property & Innovation Clinic at Stanford Law School in partnership with EFF and Engine. Revised and expanded for 2016.”

For those who wonder who or what the producer actually is, see this page which says that “the clinic’s core mission is foster innovation by advancing a regulatory climate that is appropriately sensitive to the ways in which law—whether through litigation, legislation, or regulation—can serve to promote (or frustrate) the inventiveness, creativity, and entrepreneurship that provide the real engine for economic growth.” This is connected to Mark Lemley, who is widely known for his work in this area.

There was also this accompanying blog post which said:

We’re pleased to announce the 2016 edition of Hacking the Patent System, a guide to alternative patent licensing produced by the Juelsgaard Intellectual Property & Innovation Clinic at Stanford Law School in partnership with EFF and Engine. First published in 2014, the guide provides a high-level overview of several tools that inventors and innovators could use to avert unnecessary and costly patent litigation (or at least to avoid trollish behavior themselves).

The tools we cover fall roughly into three categories: defensive patent aggregators, defensive patent pledges, and insurance. Generally speaking, defensive aggregators use the pooled resources of member companies to purchase patents that may otherwise have been purchased by trolls. These include organizations such as Allied Security Trust, RPX, and Unified Patents.

This is basically similar to the approache taken by large corporations such as IBM. They have lots of software patents of their own. What are small companies supposed to do? This relates to useless (e.g. against patent trolls) things like OIN or RPX, which is effectively quite malicious in many ways.

We have, over the years, expressed both agreement and disagreement with the EFF’s approaches. Past articles include but are not limited to:

In Twitter, the EFF has just named software patents as a problem (which is good), but the above is not the correct approach if eliminating software patents is the goal (we wrote a long article about it earlier today). Some people online, notably FFII people, are equally unhappy with the EFF’s approach. The EFF seems to be trying to coexist with software patents. It’s like OIN and the Linux Foundation, both of which are fronts of very large corporations with a lot of patents (some call it "war chest").

“What we see here is EFF policy being steered by and controlled by billionaires.”“The Apple patent that might become subject to the review is the so called “tap-to-zoom” patent,” said the patents maximalists earlier today, showing that there remains hope for elimination of software patents in the US. It is no longer an unattainable goal or some fantasy, not after Alice. No needs for aggregators or patent pledges, which are not binding contracts anyway (see how Oracle sued Google for instance, despite OIN membership). A lot of today’s chaos in the patent landscape helps act as a deterrence against small players, who simply cannot afford to pay legal fees (not for long). See today’s article from patents maximalists who say “Section 285 Does Not Support Deterrence Based Fee Enhancement” (this means proportional to what it takes to deter or discourage participation). As the patents maximalist put it: “In Octane Fitness, the Supreme Court noted the partial overlap between Section 285 fees and R. 11 sanctions. Section 285 does not particularly require sanctionable conduct but does require that the recipient be the ‘prevailing party.’”

Given where the money comes from to the EFF (for this particular initiative), it doesn’t shock us that the above approach is followed. Mark Cuban already invested in a patent troll and despite his rhetoric against software patents, he is no small player himself. What we see here is EFF policy being steered by and controlled by billionaires. Greenpeace has had similar issues.

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