EFF: Patent Busting

By Ericka Chickowski Print this article Print

From fighting patent trolls to establishing a coder's rights policy to protecting online civil liberties, the Electronic Frontier Foundation (EFF) is an organization dedicated to helping to define the gray area between the law, the rights of individuals and technology practices. This nonprofit has gained admiration across the board, from workaday admins and tech-savvy executives to rank-and-file geeks, for its 18-year-long crusade to protect individual rights to privacy and free speech on the Internet. What these supporters might not be aware of is that the EFF has its own business interests in mind, as well.

Another way EFF protects the interests of businesses and IT practitioners is in the area of patent litigation. Von Lohmann’s team tries plenty of cases where patents are misused and abused to keep the little guy from innovating and using technology fairly.

 “A patent is just an extraordinarily powerful thing, and many times claims are construed so broadly that it just locks down progress in entire fields--even progress in completely unrelated fields,” says Public Knowledge’s Siy, who believes the EFF is fighting a good fight against those who perpetuate that lock-down.

Not only has the EFF protected businesses and university researchers wrongly accused of infringing on patents for the benefit of a few litigious bullies, it also heads a grass-roots movement, called the Patent Busting Project ,to completely get rid of bad patents owned by known “patent trolls.”

As did many technology experts, leaders at the EFF saw a growing trend several years ago of companies that exist solely to buy up or register broadly worded patents for the sole purpose of casting a wide net across industries and suing innovators working in the purview of these patents for the “right” to continue their work.

“A typical patent case is very difficult to do for less than even 500 thousand to a million dollars, and that is just a barebones patent defense,” says Paul Grewal, a partner at Day Casebeer and member of the EFF advisory board. “So, if you're a small business or you're a university researcher and you've been accused of infringing on a patent, you have every incentive in the world to quickly sign a license agreement with them, pay a nominal sum and move on with the rest of your life. What the EFF was saying was, 'Wow, this is really stifling a lot of innovation.’”

In addition to its own cadre of staff lawyers, the EFF recruits a number of private-practice lawyers to help out with certain cases—Grewal is one of them. As a highly specialized patent lawyer, he has seen too many egregious abuses of patent law to turn a blind eye.

“Most of my clients are patent holders, and my firm believes in intellectual property rights,” Grewal says “(B)ut when bogus patents are being used to squeeze small settlements from people who can’t afford to defend themselves, we have a real problem with that. It is an abuse of the system and, frankly, devalues the innovation.”

Because trying patent cases is an expensive prospect, the EFF has taken the alternative tack of going after particularly bad abusers of patent law by getting their patents reexamined by the patent office. The Patent Busting project leverages EFF’s goodwill in the tech community by asking its supporters to not only suggest particularly bad patents to target, but also to dig up prior art that invalidates the claim to a patent. Then, using the help of partnering patent lawyers such as Grewal, who have experience with these reexamination proceedings, EFF takes the information and makes the community case for an overturned patent.

”What the Patent Busting project has done more than anything else is raise awareness of the issue of abuse of the system, because the unfortunate reality is that there are hundreds, if not thousands, of patents out there that should have never have been issued in the first place,” Grewal says. “And if you are a startup there is the real possibility that, just as you're finally turning a corner and going red to black—maybe you're finally getting a first release out—someone can show up at your door with a completely spurious claim. Unless you're prepared to commit millions of dollars in defending yourself in a federal lawsuit, there is not a heck of lot that you can do.”

Grewal says he does a lot of pro bono work for EFF because “I very much believe in what they are trying to do. They not only bring the passion that a lot of public interest organizations bring to their work—which is admirable—but they are some of the most knowledgeable lawyers in this particular area of law that I've ever worked with.”

This article was originally published on 2008-10-02
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