The Electronic Frontier Foundation posted Can You Believe It? Legislation that Would Actually Help Fix the Patent System, about a new bill introduced by two US Representatives. The “SHIELD” act (Saving High-Tech Innovators from Egregious Legal Disputes) simply states that if you sue someone over a computer hardware or software patent, you better have a reasonable and good-faith belief a defendant actually infringes a valid patent before it sues. Otherwise, you’re up for all the costs.

I think it’s an excellent initiative. While not really fixing the patent system, it makes the now rife patent trolling particularly in the space of software patents unprofitable. Fundamentally I believe that software patents are a mistake, but I’m also a pragmatist. Software patents are not going to disappear overnight. However, any person or corporation with money (troll or not) can currently bully a small innovator, the mere threat can put them out of business regardless of whether the claims have merit. This is because the small innovator cannot even afford to let it go to court now, the process itself would bankrupt them even if they’d win. That is a hindrance to both innovation and valid economic activity – clearly that is not the intended purpose of the patent system. The patent system was intended to provide an inventor an exclusive time period to benefit from their invention either directly or through licensing (and as a sideline, recoup up-front costs) while having the details of the invention publicly available – thus promoting innovation, not hindering it.

The proposed bill is US legislation, but with a much broader effect. For instance, technically Europe doesn’t even have software patents, but any place that interacts with the United States through free trade agreements has some form of exposure to the US way of handling Intellectual Property, no matter how broken it is.

EFF point out that the “no frivolous claims or you pay” system has long been in place for copyright infringements and other such cases, so as a concept in the space of Intellectual Property rights it’s not new at all. It makes legal and logical sense sense and puts the US patent system in line with the rest of the US IP legislation, but no doubt there’ll be vigorous lobbying by parties that have an interest in keeping the system broken. It is a good sign that US Reps. DeFazio and Chaffetz stick their head out in this way.

For the broader case of software patents, see the Defend Innovation website. You can add your support there too.