Submit working code with every software patent application, EFF proposes

The Electronic Frontier Foundation has issued a proposal to the US Patent & Trademark Office that working code must be submitted with every software patent application and published as part of the patent grant. This is the EFF's latest attempt to ameliorate the problem of functional claiming.

It’s not a coincidence that the patent trolls use software patents as their weapon of choice. Indeed, one of the reasons those patents are the most dangerous is that they are so vague and so broad. Many patents lay claim to all possible approaches to a problem, instead of the specific solution proposed by the inventor. This is known as functional claiming and is endemic to software. For instance, it’s as if in another field, someone tried to claim any arrangement of molecules in a pill to cure headaches without specifying the particular drug that accomplished that goal. The resulting dangers are obvious.

This functional claiming problem can be fixed by requiring patent applicants to claim their particular solutions, whether the particular drug that cures a headache or the specific algorithms, or even code, that accomplishes a task. And that’s just what we recommended to the Patent Office yesterday: that patent applicants should have to submit working code with their applications, or at least detailed, line-by-line notations explaining how their code works in order to get a patent. And if they do get a patent, they should be limited to the invention they claimed.

It will be interesting to see how the US PTO and the relevant legal community reacts.

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