Electronic Frontier Foundation Urges Supreme Court to Crack Down on Patent Trolls

March 5, 2014

Two Big Cases Could Protect Software Innovators – and Their Customers – From Patent Lawsuits

San Francisco - The Electronic Frontier Foundation (EFF) urged the U.S. Supreme Court to crack down on patent trolls and the schemes they use to perpetuate their lawsuits in two amicus briefs filed today.

"Patent trolls and their payoff demands depend on a flawed U.S. patent system," said EFF Senior Staff Attorney Julie Samuels, who also holds the Mark Cuban Chair to Eliminate Stupid Patents. "The cases the Supreme Court is tackling this term are prime examples of patent lawsuits gone awry. We're asking the justices today to enforce the law and protect new businesses, new gadgets, and the customers who use these products and services by providing clear rules that crack down on patent trolls."

In Nautilus v. Biosig Instruments, the Supreme Court could curtail vague and ambiguous patents that are currently allowed by the Federal Circuit. Under that standard, patent claims can stand even if "reasonable people can disagree" over the patent's meaning, and no matter "however difficult that task may be" to understand it. This has sparked a rash of vague patents, and EFF asked justices in today's brief to restore the Patent Act's requirement that patent claims be clear.

"Vague patents are extraordinarily prevalent in software, and they are a favorite tool of patent trolls," said EFF Staff Attorney Daniel Nazer. "If you can cleverly craft an ambiguous patent, you can stretch the claims later to cover all sorts of things you hadn't thought of at the time. Clarifying the law here and requiring definite claims is a straightforward, substantial way to improve patent quality and reduce shake-down patent litigation."

Limelight Networks v. Akamai Technologies involves a patent question over Limelight's content-distribution network, which allows for server-side storage of web content. Limelight's customers perform one of the steps of the patent at issue – tagging the remote content – but Akamai wants to enforce its patent anyway. In the brief filed today, EFF argues that Akamai's legal strategy could create a new category of patent defendants: end-users who unknowingly performed one of the steps.

"Imagine what would happen if using a piece of software or other service sold to you legally could result in a major patent infringement case," said Samuels. "Luckily, courts thus far have instituted a common-sense rule protecting end-users and consumers, and we're hopeful the Supreme Court will keep up this trend."

So far this term, EFF has filed four amicus briefs with the Supreme Court on patent and patent troll issues. Last week, EFF urged the court to rein in overbroad patents that are impermissibly abstract in Alice Corp. v. CLS Bank. In December, EFF filed a brief in Octane Fitness, LLC v. Icon Health & Fitness, Inc., urging the court to make it easier for prevailing defendants to get attorney's fees in patent cases.

For the full brief in Nautilus v. Biosig:
https://www.eff.org/document/nautilus-v-biosig-amicus-supreme-court

For the full brief in Limelight v. Akamai:
https://www.eff.org/document/limelight-v-akamai-amicus-supreme-court

For more information contact:
Julie Samuels
Senior Staff Attorney
Electronic Frontier Foundation
Phone: 415 436 9333
Email: julie@eff.org
Website: www.eff.org/

Daniel Nazer
Staff Attorney
Electronic Frontier Foundation
Email: daniel@eff.org