The Electronic Frontier Foundation announced a new initiative on Tuesday to seek reform of the United States patent system. Under the banner of Defend Innovation, the civil liberties organization suggested seven ways Congress could make the patent system less harmful to progress in software.

EFF wants Congress to shorten the term of software patents to five years. It proposes the creation of an independent invention defense for firms that discover a patented technology independently of a patent holder. It wants to force losing patent plaintiffs to cover defendants' legal bills. And it suggests that damages be limited in cases where a patent accounts for only a small fraction of the value of a larger product.

But conspicuously missing from the list is the most direct and obvious way to solve the problem: exclude software from patent protection altogether. Instead of endorsing this option, EFF asks Congress to "commission a study and hold hearings to examine whether software patents actually benefit our economy at all."

EFF has a long history of seeking reform, but not abolition, of software patents. And in my view, that's a serious mistake. Not only is abolition the right policy on the merits, but clearly advocating the elimination of software patents makes it more likely Congress or the courts will adopt more modest reforms. Indeed, the fact that EFF, an organization with a reputation for taking principled pro-freedom positions, has pointedly avoided advocating software patent abolition, gives undeserved legitimacy to software patents.

End them, don't mend them

Software patents are a judicial creation. Twice during the 1970s, the Supreme Court invalidated patents on software, holding that the inventions constituted abstract mathematical ideas not eligible for patent protection. In 1981, the high court allowed a patent on a software-controlled rubber-curing machine on the ground that the invention was tied to a specific physical process—the curing of rubber. It reiterated its position that mathematical algorithms, standing alone, were not eligible for patent protection.

But the United States Court of Appeals for the Federal Circuit, which hears appeals in all patent cases, had a different point of view. In a series of decisions during the late 1980s and 1990s, it effectively overturned the Supreme Court's rule against software patents. In a 1998 decision, the Federal Circuit upheld a patent on software for managing a mutual fund portfolio, holding that any invention that produced a "useful, concrete, and tangible result"—even a computer program manipulating dollar values—was eligible for patent protection.

The Supreme Court did not review that decision or any of the Federal Circuit's other decisions that effectively legalized software patents during the 1990s. The result has been an avalanche of frivolous patent litigation that has cost the economy billions of dollars.

Finally, the Supreme Court revisited the question of what could be patented in the 2010 case of Bilski v. Kappos. In that case, the court considered whether to allow a patent on "a method for managing the consumption risk costs of a commodity sold by a commodity provider."

While the case was not about the patentability of software, it was widely expected that the ruling would have implications for software patents. And so a number of organizations—the Free Software Foundation, Red Hat, the Software Freedom Law Center, and the Foundation for a Free Information Infrastructure all submitted briefs urging the high court to take the opportunity to clarify that software was not eligible for patent protection.

In contrast, the Electronic Frontier Foundation's brief argued that the Supreme Court should invalidate patents that are not tied to "technological processes." While the brief doesn't specifically discuss the status of software, it appears that many software patents would be valid under EFF's proposed rule.

"Political realities"

So why isn't EFF officially against software patents? EFF's patent work is overseen by Julie Samuels; I talked to her by phone on Wednesday morning. She emphasized that the Defend Innovation project is still a work in progress, and that the organization is interested in hearing from anyone who is affected by patents on software. "If as part of the Defend Innovation project we hear that the vast majority of EFF members and people think that software patents should be abolished, we'll work toward that."

Indeed, she indicated that she personally agreed that the Supreme Court's trio of software patent decisions in the 1970s and early 1980s excluded most software patents. "I think that's the way the case law should go," she told me. Unfortunately, she said, "we've seen some disagreements from the Federal Circuit." And while the Supreme Court hasn't overturned those cases, she noted, it also hasn't issued any opinions in more than three decades confirming that software is excluded from patent eligibility.

Moreover, she said, "there are questions of political realities here. We can't ignore that. We want to push for positions that are politically feasible." She said she's seen a growing interest in fixing the software patent problem from Capitol Hill, and so she's been looking for ideas that have a realistic prospect of being enacted by Congress. And she thinks excluding software from patentability is a political non-starter.

The Overton Window

There's nothing wrong with EFF formulating and advocating incremental reforms to the patent system. But in my view it's also essential for the nation's leading online civil liberties organization to clearly say that the best reform would be to eliminate software patents entirely.

It helps to think about the software patent debate in terms of what political scientists call the Overton Window. At any given point in time, there are some policy options that are considered to be in the Overton Window—that is, within the bounds of mainstream political discourse. Other ideas are outside the Overton Window—too radical for serious consideration. For example, in 1962, gay marriage would have been considered a political non-starter. By 1992, it was still extremely controversial idea, but had begun to be a topic of mainstream debate. Today, gay marriage is the law in several states and enjoys the support of a sitting president and a majority of voters.

By talking about policy ideas that were then considered outside the mainstream, gay rights activists in the 1970s and 1980s shifted the Overton Window in the direction of greater rights for gays and lesbians. Those efforts didn't produce many political victories in the 1970s and 1980s, but they started a conversation that led to rapid change in the early 21st Century. Moreover, as support for gay marriage grew, opponents became more interested in compromise proposals like civil unions.

The same considerations apply in the software patent debate. In my view, the right policy is to exclude software from patent protection, and I hope to eventually convince Congress or the Supreme Court to adopt that position. But even if the prospects for abolition look bleak in the short run, it's still important to have prominent organizations like EFF making the argument for abolition. By calling into question the benefits of patents on software, it also improves the climate for less dramatic reforms of software patents.

On the other hand, if mainstream organizations refuse to endorse abolition, it places the idea outside the Overton Window. Indeed, that appears to have been exactly what happened in the Bilski case. In his majority opinion, Justice Kennedy rejected a relatively strict standard suggested by a lower court because he feared it would "create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals." (Fortunately, Justice Scalia did not join this portion of Kennedy's decision, meaning that Kennedy's views on software patents are not binding precedent.)

Even if Kennedy had read more briefs calling for the abolition of software patents, it's unlikely he would have reached that result in the Bilski case. But it would at least have informed him of the fact that patents on software are controversial. And that would have made him less concerned that an otherwise-sensible rule might invalidate some software patents.

Principled history

EFF's history makes it particularly ill-suited to the role of pragmatic deal-maker. The organization's modern incarnation dates back to 1994, when the organization's board fired policy director Jerry Berman after he cut a deal with the FBI to endorse the CALEA wiretapping legislation. Berman believed that the additional privacy safeguards he was able to negotiate justified EFF's endorsement of the bill. But he faced intense criticism from many EFF members who felt the organization had strayed from its mission of principled advocacy.

Berman went on to found the Center for Democracy and Technology, a more centrist and policy-focused advocacy organization. EFF, for its part, relocated to San Francisco and has focused on litigation and advocacy rather than lobbying.

There's a role for pragmatic deal-makers in any political movement. But there's also a role for principled advocacy. And in my view, that's the primary role EFF ought to be playing in the software patent debate.

If you agree, the best way to provide that feedback is by leaving a comment on the Defend Innovation website.