A new bill has been introduced in the House of Representatives in an attempt to deter patent trolls by forcing unsuccessful patent plaintiffs to pay for defendants’ legal costs. The bill was introduced by Rep. Peter DeFazio (D-OR) and co-sponsored by Rep. Jason Chaffetz (R-UT). The Saving High-Tech Innovators from Egregious Legal Disputes (SHIELD) Act is limited to computer hardware and software patents.
“Patent trolls don’t create new technology and they don’t create American jobs,” DeFazio said in a news release. “They pad their pockets by buying patents on products they didn’t create and then suing the innovators who did the hard work and created the product.”
This legislation is the first time Congress will have defined the term “software patent”. While the Supreme Court has held that many software inventions are ineligible for patent protection, some lower courts have said that many software patents are valid. These rulings are all based on interpretation of language that Congress has not changed since 1952.
The SHIELD Act defines a software patent as a patent covering “any process that could be implemented in a computer regardless of whether a computer is specifically mentioned in the patent” as well as any computer system programmed to carry out such a process. It defines a “computer” as an “electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions.”
While the bill is careful not to endorse software patents, it does provide defendants with stronger protection against them. The authors included a provision that the bill should not be “construed as amending or interpreting categories of patent-eligible subject matter.” In other words, interpreted Ars Technica: just because we’re defining “software patent” doesn’t necessarily mean software patents are legal.
“The SHIELD Act ensures that American tech companies can continue to create jobs, rather than waste resources on fending off frivolous lawsuits,” Chaffetz said. “A single lawsuit, which may easily cost over $1 million if it goes to trial, can spell the end of a tech startup and the jobs that it could have created.”
The legislation got two thumbs up from Julie Samuels, the attorney who heads the Electronic Frontier Foundation’s Defend Innovation project. “We support policies and legislation that treat software differently,” she wrote. “Fee shifting would empower innovators to fight back, while discouraging trolls from threatening lawsuits to start.”
Passage of the bill may be a long shot, only a small fraction of bills introduced in Congress each year actually make it to the President for his signature. However, the introduction of the legislation does indicate that Congress is feeling the pressure to fix the cluster-pop that is U.S. patent law.