On August 1st, 2012, the Saving High-Tech Innovators from Egregious Legal Disputes Act, or SHIELD Act[PDF], was introduced to Congress by Representatives Peter DeFazio and Jason Chaffetz. This act is meant to deal with the problem of patent trolls destroying software businesses. The bill would enable victims of patent trolling to have their costs covered if the judge decides that the plaintiff was not likely to succeed on their claims. While many are hailing the bill for fighting against patent trolls, it does not go far enough for us to support it, and it carries some risks that concern us.

The bill defines a software patent as "any process that could be implemented in a computer regardless of whether a computer is specifically mentioned in the patent or ... any computer system that is programmed to perform a process described [above]." It then goes on to state that nothing in the bill is meant to affect the scope of patentable subject matter. This is really a lost opportunity to once and for all end the entire software patent mess. The bill might help large corporations avoid costly litigation or settlements, but it does nothing to alleviate the problem for the free software community. The bill works to diminish a harm for some that it could simply remove for all.

Even if the SHIELD Act does succeed in blocking patent trolls, the software patent system would continue to threaten the free software community. Developers would still have to worry about the threat of patent lawsuits. Companies would still be able to use the threat of a patent to abuse and manipulate others into either costly settlements or into not developing much-needed free software. The free software community would still have to waste time and resources trying to avoid or defend against the software patent minefield. Removing a few mines from the field won't change this calculation, since stepping on a single mine is so devastating.

The bill attempts to patch a broken system without questioning whether that system is harmful to begin with. This carries the unfortunate consequence of possibly prolonging the damage wrought by software patents. Any reform to reduce the risk of "bad" patents risks entrenching a false notion of "good" software patents. We are also concerned that legislation like this would make judges more sympathetic to patent claims, since the risks for anyone initiating the claims would be greater. In software, the problem is not limited to bad patents, frivolous claims, or patent trolls -- the problem is that patents exist at all.

The scope of patentable subject matter is defined legislatively, but if the bill passes then the legislature will have punted on this most important issue. We encourage Congress to end software patents, and to legislate that computer-based implementations should be immunized from patent infringement claims. That would be a real shield for all software developers.