You’re not supposed to be able to litigate in secret in the U.S. That’s especially true in a patent case dealing with technology that most internet users rely on every day.

 Unfortunately, that’s exactly what’s happening in a case called Entropic Communications, LLC v. Charter Communications, Inc. The parties have made so much of their dispute secret that it is hard to tell how the patents owned by Entropic might affect the Data Over Cable Service Interface Specifications (DOCSIS) standard, a key technical standard that ensures cable customers can access the internet.

In Entropic, both sides are experienced litigants who should know that this type of sealing is improper. Unfortunately, overbroad secrecy is common in patent litigation, particularly in cases filed in the U.S. District Court for the Eastern District of Texas.

EFF has sought to ensure public access to lawsuits in this district for years. In 2016, EFF intervened in another patent case in this very district, arguing that the heavy sealing by a patent owner called Blue Spike violated the public’s First Amendment and common law rights. A judge ordered the case unsealed.

As Entropic shows, however, parties still believe they can shut down the public’s access to presumptively public legal disputes. This secrecy has to stop. That’s why EFF, represented by the Science, Health & Information Clinic at Columbia Law School, filed a motion today seeking to intervene in the case and unseal a variety of legal briefs and evidence submitted in the case. EFF’s motion argues that the legal issues in the case and their potential implications for the DOCSIS standard are a matter of public concern and asks the district court judge hearing the case to provide greater public access.

Protective Orders Cannot Override The Public’s First Amendment Rights

As EFF’s motion describes, the parties appear to have agreed to keep much of their filings secret via what is known as a protective order. These court orders are common in litigation and prevent the parties from disclosing information that they obtain from one another during the fact-gathering phase of a case. Importantly, protective orders set the rules for information exchanged between the parties, not what is filed on a public court docket.

The parties in Entropic, however, are claiming that the protective order permits them to keep secret both legal arguments made in briefs filed with the court as well as evidence submitted with those filings. EFF’s motion argues that this contention is incorrect as a matter of law because the parties cannot use their agreement to abrogate the public’s First Amendment and common law rights to access court records. More generally, relying on protective orders to limit public access is problematic because parties in litigation often have little interest or incentive to make their filings public.

Unfortunately, parties in patent litigation too often seek to seal a variety of information that should be public. EFF continues to push back on these claims. In addition to our work in Texas, we have also intervened in a California patent case, where we also won an important transparency ruling. The court in that case prevented Uniloc, a company that had filed hundreds of patent lawsuits, from keeping the public in the dark as to its licensing activities.

That is why part of EFF’s motion asks the court to clarify that parties litigating in the Texas district court cannot rely on a protective order for secrecy and that they must instead seek permission from the court and justify any claim that material should be filed under seal.

On top of clarifying that the parties’ protective orders cannot frustrate the public’s right to access federal court records, we hope the motion in Entropic helps shed light on the claims and defenses at issue in this case, which are themselves a matter of public concern. The DOCSIS standard is used in virtually all cable internet modems around the world, so the claims made by Entropic may have broader consequences for anyone who connects to the internet via a cable modem.

It’s also impossible to tell if Entropic might want to sue more cable modem makers. So far, Entropic has sued five big cable modem vendors—Charter, Cox, Comcast, DISH TV, and DirecTV—in more than a dozen separate cases. EFF is hopeful that the records will shed light on how broadly Entropic believes its patents can reach cable modem technology.

EFF is extremely grateful that Columbia Law School’s Science, Health & Information Clinic could represent us in this case. We especially thank the student attorneys who worked on the filing, including Sean Hong, Gloria Yi, Hiba Ismail, and Stephanie Lim, and the clinic’s director, Christopher Morten.

The U.S. Senate is moving forward with two bills that would enrich patent trolls, patent system insiders, and a few large companies that rely on flimsy patents, at the expense of everyone else. 

One bill, the Patent Eligibility Restoration Act (PERA) would bring back some of the worst software patents we’ve seen, and even re-introduce types of patents on human genes that were banned years ago. Meanwhile, a similar group of senators is trying to push forward the PREVAIL Act (S. 2220), which would shut out most of the public from even petitioning the government to reconsider wrongly granted patents. 

Take Action

Tell Congress: No New Bills For Patent Trolls

Patent trolls are companies that don’t focus on making products or selling services. Instead, they collect patents, then use them to threaten or sue other companies and individuals. They’re not a niche problem; patent trolls filed the majority of patent lawsuits last year and for all the years in which we have good data. In the tech sector, they file more than 80% of the lawsuits. These do-nothing companies continue to be vigorous users of the patent system, and they’ll be the big winners under the two bills the U.S. Senate is considering pushing forward. 

Don’t Bring Back “Do It On A Computer” Patents 

The Patent Eligibility Restoration Act, or PERA, would overturn key legal precedents that we all rely on to kick the worst-of-the-worst patents out of the system. PERA would throw out a landmark Supreme Court ruling called the Alice v. CLS Bank case, which made it clear that patents can’t just claim basic business or cultural processes by adding generic computer language. 

The Alice rules are what—finally—allowed courts to throw out the most ridiculous “do it on a computer” software patents at an early stage. Under the Alice test, courts threw out patents on “matchmaking”, online picture menus, scavenger hunts, and online photo contests. 

The rules under Alice are clear, fair, and they work. It hasn’t stopped patent trolling, because there are so many patent owners willing to ask for nuisance-value settlements that are far below the cost of legal defense. It’s not perfect, and it hasn’t ended patent trolling. But Alice has done a good job of saving everyday internet users from some of the worst patent claims. 

PERA would allow patents like the outrageous one brought forward in the Alice v. CLS Bank case, which claimed the idea of having a third party clear financial transactions—but on a computer. A patent on ordering restaurant food through a mobile phone, which was used to sue more than 100 restaurants, hotels, and fast-food chains before it was finally thrown out under the Alice rules, could survive if PERA becomes law. 

Don’t Bring Back Patents On Human Genes 

PERA goes further than software. It would also overturn a Supreme Court rule that prevents patents from being granted on naturally occurring human genes. For almost 30 years, some biotech and pharmaceutical companies used a cynical argument to patent genes and monopolize diagnostic tests that analyzed them. That let the patent owners run up the costs on tests like the BRCA genes, which are predictive of ovarian and breast cancers. When the Supreme Court disallowed patents on human genes found in nature, the prices of those tests plummeted. 

Patenting naturally occurring human genes is a horrific practice and the Supreme Court was right to ban it. The fact that PERA sponsors want to bring back these patents is unconscionable. 

Allowing extensive patenting of genetic information will also harm future health innovations, by blocking competition from those who may offer more affordable tests and treatments. It could affect our response to future pandemics. Imagine if the first lab to sequence the COVID-19 genome filed for patent protection, and went on to threaten other labs that seek to create tests with patent infringement. As an ACLU attorney who litigated against the BRCA gene patents has pointed out, this scenario is not fantastical if a bill like PERA were to advance. 

Take Action

Tell Congress To Reject PERA and PREVAIL

Don’t Shut Down The Public’s Right To Challenge Patents

The PREVAIL Act would bar most people from petitioning the U.S. Patent and Trademark Office (USPTO) to revoke patents that never should have been granted in the first place. 

The U.S. Patent and Trademark Office (USPTO) issues hundreds of thousands of patents every year, with less than 20 hours, on average, being devoted to examining each patent. Mistakes happen. 

That’s why Congress created a process for the public to ask the USPTO to double-check certain patents, to make sure they were not wrongly granted. This process, called inter partes review or IPR, is still expensive and difficult, but faster and cheaper than federal courts, where litigating a patent through a jury trial can cost millions of dollars. IPR has allowed the cancellation of thousands of patent claims that never should have been issued in the first place. 

The PREVAIL Act will limit access to the IPR process to only people and companies that have been directly threatened or sued over a patent. No one else will have standing to even file a petition. That means that EFF, other non-profits, and membership-based patent defense companies won’t be able to access the IPR process to protect the public. 

EFF used the IPR process back in 2013, when thousands of our supporters chipped in to raise more than $80,000 to fight against a patent that claimed to cover all podcasts. We won’t be able to do that if PREVAIL passes. 

And EFF isn’t the only non-profit to use IPRs to protect users and developers. The Linux Foundation, for instance, funds an “open source zone” that uses IPR to knock out patents that may be used to sue open source projects. Dozens of lawsuits are filed each year against open source projects, the majority of them brought by patent trolls. 

IPR is already too expensive and limited; Congress should be eliminating barriers to challenging bad patents, not raising more.

Congress Should Work For the Public, Not For Patent Trolls

The Senators pushing this agenda have chosen willful ignorance of the patent troll problem. The facts remain clear: the majority of patent lawsuits are brought by patent trolls. In the tech sector, it’s more than 80%. These numbers may be low considering threat letters from patent trolls, which don’t become visible in the public record. 

These patent lawsuits don’t have much to do with what most people think of when they think about “inventors” or inventions. They’re brought by companies that have no business beyond making patent threats. 

The Alice rules and IPR system, along with other important reforms, have weakened the power of these patent trolls. Patent trolls that used to receive regular multi-million dollar paydays have seen their incomes shrink (but not disappear). Some trolls, like Shipping and Transit LLC finally wound up operations after being hit with sanctions (more than 500 lawsuits later). Trolls like IP Edge, now being investigated by a federal judge after claiming its true “owners” included a Texas food truck owner who turned out to be, essentially, a decoy. 

There’s big money behind bringing back the patent troll business, as well as a few huge tech and pharma companies that prefer to use unjustified monopolies rather than competing fairly. Two former Federal Circuit judges, two former Directors of the U.S. Patent and Trademark Office, and many other well-placed patent insiders are all telling Congress that Alice should be overturned and patent trolls should be allowed to run amok. We can’t let that happen. 

Take Action

Tell Congress: Don't Work For Patent Trolls

The authors of the dangerous Kids Online Safety Act (KOSA) unveiled an amended version this week, but it’s still an unconstitutional censorship bill that continues to empower state officials to target services and online content they do not like. We are asking everyone reading this to oppose this latest version, and to demand that their representatives oppose it—even if you have already done so. 

TAKE ACTION

TELL CONGRESS: OPPOSE THE KIDS ONLINE SAFETY ACT

KOSA remains a dangerous bill that would allow the government to decide what types of information can be shared and read online by everyone. It would still require an enormous number of websites, apps, and online platforms to filter and block legal, and important, speech. It would almost certainly still result in age verification requirements. Some of its provisions have changed over time, and its latest changes are detailed below. But those improvements do not cure KOSA’s core First Amendment problems. Moreover, a close review shows that state attorneys general still have a great deal of power to target online services and speech they do not like, which we think will harm children seeking access to basic health information and a variety of other content that officials deem harmful to minors.  

We’ll dive into the details of KOSA’s latest changes, but first we want to remind everyone of the stakes. KOSA is still a censorship bill and it will still harm a large number of minors who have First Amendment rights to access lawful speech online. It will endanger young people and impede the rights of everyone who uses the platforms, services, and websites affected by the bill. Based on our previous analyses, statements by its authors and various interest groups, as well as the overall politicization of youth education and online activity, we believe the following groups—to name just a few—will be endangered:  

• LGBTQ+ Youth will be at risk of having content, educational material, and their own online identities erased.  
• Young people searching for sexual health and reproductive rights information will find their search results stymied. 
• Teens and children in historically oppressed and marginalized groups will be unable to locate information about their history and shared experiences. 
• Activist youth on either side of the aisle, such as those fighting for changes to climate laws, gun laws, or religious rights, will be siloed, and unable to advocate and connect on platforms.  
• Young people seeking mental health help and information will be blocked from finding it, because even discussions of suicide, depression, anxiety, and eating disorders will be hidden from them. 
• Teens hoping to combat the problem of addiction—either their own, or that of their friends, families, and neighbors, will not have the resources they need to do so.  
• Any young person seeking truthful news or information that could be considered depressing will find it harder to educate themselves and engage in current events and honest discussion. 
• Adults in any of these groups who are unwilling to share their identities will find themselves shunted onto a second-class internet alongside the young people who have been denied access to this information. 

What’s Changed in the Latest (2024) Version of KOSA 

In its impact, the latest version of KOSA is not meaningfully different from those previous versions. The “duty of care” censorship section remains in the bill, though modified as we will explain below. The latest version removes the authority of state attorneys general to sue or prosecute people for not complying with the “duty of care.” But KOSA still permits these state officials to enforce other part of the bill based on their political whims and we expect those officials to use this new law to the same censorious ends as they would have of previous versions. And the legal requirements of KOSA are still only possible for sites to safely follow if they restrict access to content based on age, effectively mandating age verification.   

KOSA is still a censorship bill and it will still harm a large number of minors

Duty of Care is Still a Duty of Censorship 

Previously, KOSA outlined a wide collection of harms to minors that platforms had a duty to prevent and mitigate through “the design and operation” of their product. This includes self-harm, suicide, eating disorders, substance abuse, and bullying, among others. This seemingly anodyne requirement—that apps and websites must take measures to prevent some truly awful things from happening—would have led to overbroad censorship on otherwise legal, important topics for everyone as we’ve explained before.  

The updated duty of care says that a platform shall “exercise reasonable care in the creation and implementation of any design feature” to prevent and mitigate those harms. The difference is subtle, and ultimately, unimportant. There is no case law defining what is “reasonable care” in this context. This language still means increased liability merely for hosting and distributing otherwise legal content that the government—in this case the FTC—claims is harmful.  

Design Feature Liability 

The bigger textual change is that the bill now includes a definition of a “design feature,” which the bill requires platforms to limit for minors. The “design feature” of products that could lead to liability is defined as: 

any feature or component of a covered platform that will encourage or increase the frequency, time spent, or activity of minors on the covered platform, or activity of minors on the covered platform. 

Design features include but are not limited to 

(A) infinite scrolling or auto play; 

(B) rewards for time spent on the platform; 

(C) notifications; 

(D) personalized recommendation systems; 

(E) in-game purchases; or 

(F) appearance altering filters. 

These design features are a mix of basic elements and those that may be used to keep visitors on a site or platform. There are several problems with this provision. First, it’s not clear when offering basic features that many users rely on, such as notifications, by itself creates a harm. But that points to the fundamental problem of this provision. KOSA is essentially trying to use features of a service as a proxy to create liability for speech online that the bill’s authors do not like. But the list of harmful designs shows that the legislators backing KOSA want to regulate online content, not just design.   

For example, if an online service presented an endless scroll of math problems for children to complete, or rewarded children with virtual stickers and other prizes for reading digital children’s books, would lawmakers consider those design features harmful? Of course not. Infinite scroll and autoplay are generally not a concern for legislators. It’s that these lawmakers do not like some lawful content that is accessible via online service’s features. 

What KOSA tries to do here then is to launder restrictions on content that lawmakers do not like through liability for supposedly harmful “design features.” But the First Amendment still prohibits Congress from indirectly trying to censor lawful speech it disfavors.  

We shouldn’t kid ourselves that the latest version of KOSA will stop state officials from targeting vulnerable communities.

Allowing the government to ban content designs is a dangerous idea. If the FTC decided that direct messages, or encrypted messages, were leading to harm for minors—under this language they could bring an enforcement action against a platform that allowed users to send such messages. 

Regardless of whether we like infinite scroll or auto-play on platforms, these design features are protected by the First Amendment; just like the design features we do like. If the government tried to limit an online newspaper from using an infinite scroll feature or auto-playing videos, that case would be struck down. KOSA’s latest variant is no different.   

Attorneys General Can Still Use KOSA to Enact Political Agendas 

As we mentioned above, the enforcement available to attorneys general has been narrowed to no longer include the duty of care. But due to the rule of construction and the fact that attorneys general can still enforce other portions of KOSA, this is cold comfort. 

For example, it is true enough that the amendments to KOSA prohibit a state from targeting an online service based on claims that in hosting LGBTQ content that it violated KOSA’s duty of care. Yet that same official could use another provision of KOSA—which allows them to file suits based on failures in a platform’s design—to target the same content. The state attorney general could simply claim that they are not targeting the LGBTQ content, but rather the fact that the content was made available to minors via notifications, recommendations, or other features of a service. 

We shouldn’t kid ourselves that the latest version of KOSA will stop state officials from targeting vulnerable communities. And KOSA leaves all of the bill’s censorial powers with the FTC, a five-person commission nominated by the president. This still allows a small group of federal officials appointed by the President to decide what content is dangerous for young people. Placing this enforcement power with the FTC is still a First Amendment problem: no government official, state or federal, has the power to dictate by law what people can read online.  

The Long Fight Against KOSA Continues in 2024 

For two years now, EFF has laid out the clear arguments against this bill. KOSA creates liability if an online service fails to perfectly police a variety of content that the bill deems harmful to minors. Services have little room to make any mistakes if some content is later deemed harmful to minors and, as a result, are likely to restrict access to a broad spectrum of lawful speech, including information about health issues like eating disorders, drug addiction, and anxiety.  

The fight against KOSA has amassed an enormous coalition of people of all ages and all walks of life who know that censorship is not the right approach to protecting people online, and that the promise of the internet is one that must apply equally to everyone, regardless of age. Some of the people who have advocated against KOSA from day one have now graduated high school or college. But every time this bill returns, more people learn why we must stop it from becoming law.   

TAKE ACTION

TELL CONGRESS: OPPOSE THE KIDS ONLINE SAFETY ACT

We cannot afford to allow the government to decide what information is available online. Please contact your representatives today to tell them to stop the Kids Online Safety Act from moving forward. 

Our government shouldn’t be spying on journalists. Nor should law enforcement agencies force journalists to identify their confidential sources or go to prison. 

To fix this, we need to change the law. Now, we’ve got our best chance in years. The House of Representatives has passed the Protect Reporters from Exploitive State Spying (PRESS) Act, H.R. 4250, and it’s one of the strongest federal shield bills for journalists we’ve seen. 

Take Action

Tell Congress To Pass the PRESS Act Now

The PRESS Act would do two critical things: first, it would bar federal law enforcement from surveilling journalists by gathering their phone, messaging, or email records. Secondly, it strictly limits when the government can force a journalist to disclose their sources. 

Since its introduction, the bill has had strong bipartisan support. And such “shield” laws for reporters have vast support across the U.S., with 49 states and the District of Columbia all having some type of law that prevents journalists from being forced to hand over their files to assist in criminal prosecutions, or even private lawsuits. 

While journalists are well protected in many states, federal law is currently lacking in protections. That’s had serious consequences for journalists, and for all Americans’ right to freely access information. 

Multiple Presidential Administrations Have Abused Laws To Spy On Journalists

The Congressional report on this bill details abuses against journalists by all of the past three Presidential administrations. Federal law enforcement officials improperly acquired reporters’ phone records on numerous occasions since 2004, under both Democratic and Republican administrations. 

On at least 12 occasions since 1990, law enforcement threatened journalists with jail or home confinement for refusing to give up their sources; some reporters served months in jail. 

Elected officials must do more about these abuses than preside over after-the-fact apologies. 

PRESS Act Protections

The PRESS Act bars the federal government from surveilling journalists through their phones, email providers, or other online services. These digital protections are critical because they reflect how journalists operate in the field today. The bill restricts subpoenas aimed not just at the journalists themselves, but their phone and email providers. Its exceptions are narrow and targeted. 

The PRESS Act also has an appropriately broad definition of the practice of journalism, covering both professional and citizen journalists. It applies regardless of a journalist’s political leanings or medium of publication. 

The government surveillance of journalists over the years has chilled journalists’ ability to gather news. It’s also likely discouraged sources from coming forward, because their anonymity isn’t guaranteed. We can’t know the important stories that weren’t published, or weren’t published in time, because of fear of retaliation on the part of journalists or their sources. 

In addition to EFF, the PRESS Act is supported by a wide range of press and rights groups, including the ACLU, the Committee to Protect Journalists, the Freedom of the Press Foundation, the First Amendment Coalition, the News Media Alliance, the Reporters Committee for Freedom of the Press, and many others. 

Our democracy relies on the rights of both professional journalists and everyday citizens to gather and publish information. The PRESS Act is a long overdue protection. We have sent Congress a clear message to pass it; please join us by sending your own email to the Senate using our links below. 

Take Action

Tell Congress To Pass the PRESS Act Now

At EFF, we believe that all the rights we have in the offline world–to speak freely, create culture, play games, build things and do business–must hold up in the digital world, as well. 

EFF’s longstanding project of fighting for a more balanced, just patent system has always borne free expression in mind. And patent trolls, who simply use intellectual property (IP) rights to extract money from others, continue to be a barrier to people who want to freely innovate, or even just use technology. 

Defending IPR 

The inter partes review (IPR) process that Congress created about a decade ago is far from perfect, and we’ve supported a few ideas that would make it stronger. But overall, IPR has been a big step forward for limiting the damage of wrongly granted patents. Thousands of patent claims have been canceled through this process, which uses specialized administrative judges and is considerably faster and less expensive than federal courts. 

And IPR does no harm to legitimate patent holders. In fact, it only affects a tiny proportion of patents at all. In fiscal year 2023, there were 392 patents that were partially invalidated, and 133 patents that were fully invalidated. That’s out of a universe of an estimated 3.8 million “live” patents, according to the U.S. Patent and Trademark Office’s (USPTO) own data. 

Patent examiners have less than 20 hours, on average, to go through the entire review process for a particular patent application. The process ends with the patent applicant getting a limited monopoly from the government–a monopoly right that’s now given out more than 300,000 times per year. It only makes sense to have some type of post-grant review system to challenge the worst patents at the patent office. 

Despite this, patent trolls and other large, aggressive patent holders are determined to roll back the IPR process. This year, they lobbied the USPTO to begin a process that would allow wrongheaded rule changes that would severely threaten access to the IPR process. 

EFF, allied organizations, and tens of thousands of individuals wrote to the U.S. Patent Office opposing the proposed rules, and insisting that patent challenges should remain open to the public. 

We’re also opposing an even more extreme set of rule changes to IPR that has been unfortunately put forward by some key Senators. The PREVAIL Act would sharply limit IPR to only the immediately affected parties, and bar groups like EFF from accessing IPR at all. (A crowdfunded IPR process is how we shut down the dangerous “podcasting” patent.) 

Defending Alice

The Supreme Court’s 2014 decision in Alice v. CLS Bank barred patents that were nothing more than abstract ideas with computer jargon added in. Using the Alice test, federal courts have kicked out a rogue’s gallery of hundreds of the worst patents, including patents claiming “matchmaking”, online picture menus, scavenger hunts, and online photo contests. 

Dozens of individuals and small businesses have been saved by the Alice precedent, which has done a decent job of stopping the worst computer patents from surviving–at least when a defendant can afford to litigate the case. 

Unfortunately, certain trade groups keep pushing to roll back the Alice framework. For the second year in a row, we saw the introduction of a bill called the Patent Eligibility Restoration Act. This proposal would reverse course not only on the Alice rule, but also authorize the patenting of human genes that currently cannot be patented thanks to another Supreme Court case, AMP v. Myriad. It would “restore” the absolute worst patents on computer technology, and on human genes. 

We also called out the U.S. Solicitor General when that office wrote a shocking brief siding with a patent troll, suggesting that the Supreme Court re-visit Alice. 

The Alice precedent protects everyday internet users. We opposed the Solicitor General when she came out against users, and we’ll continue to strongly oppose PERA. 

Until our patent laws get the kind of wholesale change we have advocated for, profiteers and scam artists will continue to claim they “own” various types of basic internet use. That myth is wrong, it hurts innovation, and it hurts free speech. With your help, EFF remains a bulwark against this type of patent abuse.

This blog is part of our Year in Review series. Read other articles about the fight for digital rights in 2023.

Private communication is a fundamental human right. In the online world, the best tool we have to defend this right is end-to-end encryption. Yet throughout 2023, politicians across Europe attempted to undermine encryption, seeking to access and scan our private messages and pictures. 

But we pushed back in the EU, and so far, we’ve succeeded. EFF spent this year fighting hard against an EU proposal (text) that, if it became law, would have been a disaster for online privacy in the EU and throughout the world. In the name of fighting online child abuse, the European Commission, the EU’s executive body, put forward a draft bill that would allow EU authorities to compel online services to scan user data and check it against law enforcement databases. The proposal would have pressured online services to abandon end-to-end encryption. The Commission even suggested using AI to rifle through peoples’ text messages, leading some opponents to call the proposal “chat control.”

EFF has been opposed to this proposal since it was unveiled last year. We joined together with EU allies and urged people to sign the “Don’t Scan Me” petition. We lobbied EU lawmakers and urged them to protect their constituents’ human right to have a private conversation—backed up by strong encryption. 

Our message broke through. In November, a key EU committee adopted a position that bars mass scanning of messages and protects end-to-end encryption. It also bars mandatory age verification, which would have amounted to a mandate to show ID before you get online; age verification can erode a free and anonymous internet for both kids and adults. 

We’ll continue to monitor the EU proposal as attention shifts to the Council of the EU, the second decision-making body of the EU. Despite several Member States still supporting widespread surveillance of citizens, there are promising signs that such a measure won’t get majority support in the Council. 

Make no mistake—the hard-fought compromise in the European Parliament is a big victory for EFF and our supporters. The governments of the world should understand clearly: mass scanning of peoples’ messages is wrong, and at odds with human rights. 

A Wrong Turn in the U.K.

EFF also opposed the U.K.’s Online Safety Bill (OSB), which passed and became the Online Safety Act (OSA) this October, after more than four years on the British legislative agenda. The stated goal of the OSB was to make the U.K. the world’s “safest place” to use the internet, but the bill’s more than 260 pages actually outline a variety of ways to undermine our privacy and speech. 

The OSA requires platforms to take action to prevent individuals from encountering certain illegal content, which will likely mandate the use of intrusive scanning systems. Even worse, it empowers the British government, in certain situations, to demand that online platforms use government-approved software to scan for illegal content. The U.K. government said that content will only be scanned to check for specific categories of content. In one of the final OSB debates, a representative of the government noted that orders to scan user files “can be issued only where technically feasible,” as determined by the U.K. communications regulator, Ofcom. 

But as we’ve said many times, there is no middle ground to content scanning and no “safe backdoor” if the internet is to remain free and private. Either all content is scanned and all actors—including authoritarian governments and rogue criminals—have access, or no one does. 

Despite our opposition, working closely with civil society groups in the UK, the bill passed in September, with anti-encryption measures intact. But the story doesn't end here. The OSA remains vague about what exactly it requires of platforms and users alike. Ofcom must now take the OSA and, over the coming year, draft regulations to operationalize the legislation. 

The public understands better than ever that government efforts to “scan it all” will always undermine encryption, and prevent us from having a safe and secure internet. EFF will monitor Ofcom’s drafting of the regulation, and we will continue to hold the UK government accountable to the international and European human rights protections that they are signatories to. 

EFF believes you have the right to have a private conversation–in the physical world, and in the digital world. The best technology to protect that right is end-to-end encryption. 

Governments around the world are working hard to monitor online conversations, far beyond the bounds of traditional targeted law enforcement. 2023 has been a year of unprecedented threats to encryption and privacy. 

In the US, three Senate bills were introduced that, in our view, would discourage, weaken, or create backdoors into encryption technology. With your help, we’ve stopped all three from moving forward–and we’ll continue to do so in the year to come. 

EARN IT, S. 1207

Simply put, EARN IT allows providers of secure communications services to be sued or prosecuted. The excuse for EARN IT is to combat online child abuse. EARN IT would allow state attorneys general to regulate the internet, as long as the stated purpose for their regulation is to protect kids from online exploitation.  

There’s no doubt that the purpose of this bill is to scan user messages, photos, and files. In a Q&A document published last year, the bill sponsors even suggested specific software that could be used to monitor users. If you offer your users encrypted services, the bill specifically allows the fact that you offered encryption to constitute evidence against you in court. 

Constantly scanning every internet user is not a reasonable technique for investigating crimes. What’s more, evidence continues to mount that the scanning software used to detect child abuse does not work and creates false accusations. If EARN IT passes, it will push companies to either stop using encryption services or even create a dangerous backdoor to encryption that would weaken privacy and security for everyone. 

We were disappointed that EARN IT passed through a committee vote, although heartened that more senators expressed concerns with the bill’s effects. EARN IT has not seen a vote on the Senate floor, and we’re continuing to express our strong opposition, together with other groups that are concerned about human rights and privacy. 

STOP CSAM, S. 1199

Possessing or distributing child abuse images is a serious crime. Anyone who has actual knowledge of such images on a service they control is required to notify the National Center for Missing and Exploited Children (a government entity), which then forwards reports to law enforcement agencies. 

That’s why we were surprised and disappointed to see some Senators introduced a bill that falsely suggests this existing law-enforcement framework would work better with the addition of mass surveillance. 

The STOP CSAM bill, introduced in April, would create new crimes, allowing those who “knowingly promote or facilitate” the exploitation of children to be prosecuted, based on the very low legal standard of negligence. This is the same legal standard that applies to car accidents and other situations where the defendant did not intend to cause harm. 

At first glance, it may sound good to fight those who “promote” or “facilitate” these crimes, but the bill’s broad terms will likely reach passive conduct like, you guessed it, simply providing an encrypted app. 

STOP CSAM is one more attempt to criminalize and demonize anyone who uses encryption to communicate online. That’s why we’ve opposed it throughout the year. This bill passed out of the Senate Judiciary Committee, but has not received a vote on the Senate floor. 

Cooper Davis, S. 1080

This bill is a misguided attempt to deal with the nation’s fentanyl crisis by turning your smartphone into a DEA informant.  It threatens communications service providers with huge fines if they don’t report to the DEA suspected drug sales on their platforms. 

Faced with massive potential punishments, service providers will inevitably censor a wide variety of communications about drugs–including peoples’ descriptions of their own experiences, and even attempts to support others who are trying to get social or medical help with an addiction problem. 

If S.1080 were to pass Congress, legislators seeking to persecute certain groups will be eager to expand the framework. In many states, politicians and prosecutors have been vocal about their desire to find and prosecute marijuana users and doctors, people who may use abortion pills, or people who want gender-related medication. 

S. 1080 also has no provision to ensure the DEA deletes incorrect reports, does not properly notify users who get targeted, and does not require law enforcement to get a warrant to preserve the massive troves of private data they will be sent about users. The bill was passed in committee in a 16-5 vote in July, but has not received a vote on the Senate floor. 

EFF will continue to oppose proposals that seek to vacuum up our private communications, or push platforms towards censorship of legitimate content. The thousands of messages we sent to Congress opposing these wrongheaded proposals have stopped them from becoming law. We held the line in 2023 with your help–thank you. 

This blog is part of our Year in Review series. Read other articles about the fight for digital rights in 2023.

Patents are supposed to be an incentive to invent. Too often, they end up being a way to try to claim “ownership” of what should be basic building blocks of human activity, culture, and knowledge. This is especially true of software patents, an area EFF has been speaking out about for more than 20 years now. 

This month’s Stupid Patent, No. 8,655,715, continues the tradition of trying to use software language to capture a monopoly on a basic human cultural activity–in this case, contests. 

A company called Opus One, which does business under the name “Contest Factory,” claims this patent and a related one cover a huge array of online contests. So far, they’ve filed five lawsuits against other companies that help build online contests, and even threatened a small photo company that organizes mostly non-commercial contests online. 

The patents held by Contest Factory are a good illustration of why EFF has been concerned about out-of-control software patents. It’s not just that wrongly issued patents extort a vast tax on the U.S. economy (although they do—one study estimated $29 billion in annual direct costs). The worst software patents also harm peoples’ rights to express themselves and participate in online culture. Just as we’re free in the physical world to sign documents, sort photos, store and label information, clock in to work, find people to date, or teach foreign languages, without paying extortionate fees to others, we must also be free to do so online. 

Patenting Contests

Claim 1 of the ‘715 patent has steps that claim: 

• Receiving, storing, and accessing data on a computer; 
• Sorting it and generating “contest data”; 
• Tabulating votes and picking a winner.

The patent also uses other terms for common activities of general purpose computers, such as “transmitting” and “displaying” data. 

In other words, the patent describes everyday use of computers, plus the idea of users participating in a contest. This is a classic abstract idea, and it never should have been eligible for a patent. 

In a 2017 article in CIO Review, the company acknowledges how incredibly broad its claims are. Contest Factory claims it patented “voting in online contests long before TV contest shows with public voting components made their appearance,” and that it holds patents “associated with online contests and integrating online voting with virtually any type of contest.” 

Lawsuit Over Radio Station Contest 

In its most recent lawsuit, Contest Factory says that a Minneapolis radio station’s “Mother’s Day Giveaway” for a mother/daughter spa day infringed its patent. The radio station asked people to post mother-daughter selfies online and share their entry to collect votes. 

Contest Factory sued Pancake Labs (complaint), the company that helped the radio station put the contest online. Contest Factory also claimed a PBS contest in which viewers created short films and voted on them was an example of infringement. 

For the “Mother’s Day Giveaway” contest, the patent infringement accusation reads in part that, “the executable instructions … cause the generation of a contest and the transmission of the first and second content data to at least one user to view and rate the content.” 

Contest Factory has sued over quite a few internet contests, dating back more than a decade. Its 2016 lawsuits, based on the ‘715 patent and two earlier related patents, were filed against three small online marketing firms: Vancouver-based Strutta, Florida-based Elettro, and California-based Votigo, for contests that go back to 2011. We don’t know how many more companies or online communities have been threatened in all. 

Sharing user-generated content like photos—cooperatively or competitively—is the kind of sharing that the digital world is ideal for. When patent owners demand a toll for these activities, it doesn’t matter whether they’re patent “trolls” or operating companies seeking to extract settlements from competitors. They threaten our freedoms in unacceptable ways. 

The government shouldn’t be issuing patents like these, and it certainly shouldn’t be making them harder to challenge. 

• Opus One d/b/a Contest Factory v. Pancake Labs complaint
• Opus One d/b/a Contest Factory v. Telescope complaint 
• Opus One d/b/a Contest Factory v. Elletro complaint 
• Opus One d/b/a Contest Factory v. Votigo complaint 
• Opus One d/b/a Contest Factory v. Strutta complaint

Update 11/14/2023: The LIBE committee adopted the compromise amendments by a large majority. Once the committee's version of the law becomes the official position of the European Parliament, attention will shift to the Council of the EU. Along with our allies, EFF will continue to advocate that the EU reject proposals to require mass scanning and compromise of end-to-end encryption.

A key European parliamentary committee has taken an important step to defend user privacy, including end-to-end encryption. The Committee on Civil Liberties, Justice and Home Affairs (LIBE) has politically agreed on much-needed amendments to a proposed regulation that, in its original form, would allow for mass-scanning of people’s phones and computers. 

The original proposal from the European Commission, the EU’s executive body, would allow EU authorities to compel online services to analyze all user data and check it against law enforcement databases. The stated goal is to look for crimes against children, including child abuse images. 

But this proposal would have undermined a private and secure internet, which relies on strong encryption to protect the communications of everyone—including minors. The EU proposal even proposed reporting people to police as possible child abusers by using AI to rifle through people’s text messages. 

Every human being should have the right to have a private conversation. That’s true in the offline world, and we must not give up on those rights in the digital world. We deserve to have true private communication, not bugs in our pockets. EFF has opposed this proposal since it was introduced. 

More than 100 civil society groups joined us in speaking out against this proposal. So did thousands of individuals who signed the petition demanding that the EU “Stop Scanning Me.” 

The LIBE committee has wisely listened to those voices, and now major political groups have endorsed a compromise proposal that has language protecting end-to-end encryption. Early reports indicate the language will be a thorough protection that includes language disallowing client-side scanning, a form of bypassing encryption. 

The compromise proposal also takes out earlier language that could have allowed for mandatory age verification. Such age verification mandates amount to requiring people to show ID cards before they get on the internet; they are not compatible with the rights of adults or minors to speak anonymously when necessary. 

The LIBE committee is scheduled to confirm the new agreement  on November 13. The language is not perfect; some parts of the proposal, while not mandating age verification, may encourage its further use. The proposal could also lead to increased scanning of public online material that could be less than desirable, depending on how it’s done. 

Any time governments access peoples’ private data it should be targeted, proportionate, and subject to judicial oversight. The EU legislators should consider this agreement to be the bare minimum of what must be done to protect the rights of internet users in the EU and throughout the world. 

The U.S. Senate Subcommittee on Intellectual Property will debate a bill this week that would dramatically limit the public’s right to challenge bad granted patents. The PREVAIL Act, S. 2220 would bar most people from petitioning the U.S. Patent and Trademark Office (USPTO) to revoke patents that never should have been granted in the first place. 

If the bill passes, it would be a giant gift to patent trolls, who will be able to greatly increase the extortionate toll they demand from small businesses, software developers, and everyday internet users. EFF opposes the bill, and we’re reaching out to Congress to let them know they should stand with technology makers and users—not patent trolls. 

The PREVAIL Bill Will Ban Most People From Challenging Bad Patents 

Every year, hundreds of patent lawsuits are filed over everyday internet activities–“inventions” like watching ads (online), showing picture menus (online), sharing sports data (online), selling binders or organic produce (online), or clocking in to work (online). 

The patents are usually controlled by “patent assertion entities,” also called patent trolls, which don’t actually do business or use the ideas themselves. 

There are two main ways of fighting back against these types of bogus patents. First, they can be invalidated in federal court, which can cost millions of dollars. Second, they can be challenged at the U.S. Patent and Trademark Office, usually in a process called an inter partes review, or IPR. The IPR process is also expensive and difficult, but this quasi-judicial process is much faster and cheaper than district courts. IPR has allowed the cancellation of thousands of patent claims that never should have been issued in the first place. 

The PREVAIL Act will limit access to the IPR process to only people and companies that have been directly threatened or sued over a patent. No one else will have standing to even file a petition. That means that EFF, other non-profits, and membership-based patent defense companies like Unified Patents won’t be able to access the IPR process at all. 

EFF used the IPR process back in 2013, when thousands of our supporters chipped in to raise more than $80,000 to fight against a patent that claimed to cover all podcasts. EFF was able to present prior art (earlier technology), and the judges at the Patent Office agreed that the so-called “podcasting patent,” which belonged to a patent troll called Personal Audio LLC, should never have been granted. The patent was knocked out and although the patent owner appealed all the way to the Supreme Court, our win was upheld at every stage. 

We’re not the only non-profit to use IPRs to protect users and developers. The Linux Foundation, for instance, funds an “open source zone” that uses IPR to knock out patents that may be used to sue open source projects. Hundreds of patents per year are litigated against open source projects, the great majority of them being owned by patent trolls. 

Challenges Matter Because Most Software Patents Were Wrongly Granted

Patents are a government-granted monopoly that lasts 20 years. The owners of those monopoly rights often want payment from those who use the method or system they claim to “own.” These are vast and broad claims–particularly the ones used by patent trolls, which will sue dozens of companies that have very different ways of doing things. 

When a patent troll comes along like Lodsys, which threatened hundreds of independent app developers over online payment technology, software makers shouldn’t have to wait until they get a threat letter in the mail to fight back. What’s more, funding defensive measures like IPRs through crowdfunding or membership-based systems are critical to making them accessible to everyday people. 

The government gives out software monopolies in the name of spurring innovation. But the Patent Office gets it wrong very, very often. Roughly half of patents litigated to judgment are found invalid (even though the legal standard heavily favors issued patents), and one study found the most heavily-litigated patents win in court only 11% of the time. 

There’s a growing body of evidence that patents don’t work to spur software innovation, and in fact do harm. The least we should be allowed is the right to bring evidence forward to challenge the most abused monopoly rights. 

The PREVAIL Act Tilts The Table In Favor Of Trolls At Every Step 

The bill tweaks the patent challenge system in other ways too, nearly all of which favor patent trolls and a few large patent-owners. 

First, the PREVAIL Act greatly raises the standard of evidence needed to invalidate a patent. If it passes, the Patent Trial and Appeal Board will presume that the patent claims are valid unless the challengers carry a heavy burden to show otherwise. Right now, the legal standards for inter partes review are roughly aligned with the standards for issuance of proposed patent claims. That alignment is what makes IPR a true opportunity for the PTO to reconsider the issuance of patent claims. 

Second, the bill would require parties that file IPR challenges to give up their right to fight in federal court. This doesn’t make any sense. Certain arguments, like arguing that a patent is abstract and ineligible under the Alice precedent, can only be made in district court. Choosing to present prior art arguments at the Patent Office shouldn’t bar someone who has been targeted by a patent troll from being able to properly defend themselves in court. Ultimately, it’s only a judge or jury that can decide a patent has been infringed—and award damages. Anyone accused of patent infringement must have all defenses available to them when they face such a proceeding. 

Third, when patents get invalidated, PREVAIL allows patent owners to simply add new claims that avoid the issues presented before the court. The owners get to do this with the benefit of years of hindsight, and new information about what real innovators have found to be successful in the market. Combined with the waiver of the ability to later challenge validity in court, this is clearly a raw deal for the public and anyone on the receiving end of a patent threat.

Finally, the bill gives the USPTO Director the power to throw out petitions in cases where more than one petition challenges the same patent. But it makes perfect sense for there to be multiple challenges over the most controversial, heavily litigated patents. The same patent or group of patents is often used to threaten hundreds–or even thousands–of small businesses. There shouldn’t be a race to the door where only the first challenger (who might not be the best challenger) gets their case heard. 

But that’s exactly what will happen if PREVAIL passes. Even a patent that’s been used dozens of times will only have to face one challenger at the USPTO, even if the two challengers bring forth very different arguments and evidence. Given that there are so few limitations on who patent owners can threaten and sue, it’s unfair to place harsh limits on the comparatively few people or companies that have the desire, and the resources, to fight back against wrongly granted patents. 

Congress Should Allow More Challenges to U.S. Patents, Not Fewer 

The PREVAIL Act proceeds from a misguided, evidence-free belief system that attributes innovation and economic success to government idea-monopolies. The evidence is growing that the U.S. software industry thrives in spite of software patents, not because of them. 

There are useful ways we could change the IPR system. In 2021, EFF supported a bill brought by then-Senator Patrick Leahy brought forward a bill that would have updated the IPR system and closed four loopholes in the system. Importantly, that bill expanded access to IPR–it didn’t shrink it. 

In fact, the public benefits from challenging bad patents. We could go even further in expanding patent challenges, and it would be to the public’s benefit. For instance, we could allow patent challengers to explain when a patent shouldn’t have been issued because it claims abstract ideas, which aren’t patentable per Section 101 of the Patent Act. Those arguments currently aren’t allowed during IPR proceedings. 

The forces behind this bill represent patent trolls and other large-scale patent enforcers. In the end, the IPR process has benefited the public, but it’s been a net loss for a small group of people and companies that have made a lot of money from asserting patent threats. That’s why we’ve seen continuous efforts to destroy the IPR process, including misguided court challenges and pushing harmful rule changes at USPTO to limit its effects. 

The PREVAIL Act will do far more harm than good, and we’ll be calling on lawmakers in Congress to oppose this bill. 

Landmark Technology’s U.S. Patent No. 7,010,508, and its predecessor, are very likely two of the most-abused patents in U.S. history. These patents, under two different owners, have been used to threaten thousands of small businesses since 2001. 

In just one 18-month period, the ‘508 patent was the subject of more than 1,800 patent demand letters sent to more than 1,100 different businesses. All of these businesses were told to pay up—typically $65,000—for using basic e-commerce technology like home pages, customer login pages, and product-ordering pages. 

Now the ‘508 patent’s threat is likely dead, thanks to a recent ruling by a North Carolina federal judge in a case that started after Landmark threatened the website Binders.com for selling binders (but, you know, on the Internet). NAPCO, the company that owns Binders.com, responded to Landmark’s $65,000 demand by challenging Landmark’s patent in court. After more than two years of litigation, the judge issued a ruling stating that the ‘508 patent’s disputed claim is invalid because it is ‘indefinite.’ Specifically, it purported to cover network technology that could perform various functions but failed to describe a way those functions could be achieved. While not at issue here, similar terms in the patents’ other independent claims are likely invalid for the same reasons.

“[T]he company broadly and aggressively misuses the patent claims, targeting virtually any small business with a website, seemingly at random,” is how the Washington State Attorney General describes Landmark’s business model. 

The Washington State Attorney General’s office sued Landmark in 2021, claiming its aggressive patent trolling violated state consumer protection laws. That case has been removed to federal court and is ongoing. 

We hope to never see the ‘508 patent—or any patent related to it—in a threat letter again. Landmark’s long, punishing campaign against small businesses who simply used basic online tools is, hopefully, over. It’s a good moment to take stock of how we got here. Unfortunately, many elements of our broken patent system continue to encourage behavior like Landmark’s. 

Courts Let “Functional Claiming” In Software Patents Get Out Of Control

The ‘508 patent involves “means-plus-function” claims. This is a type of patent that allows for broad, functional claiming. As explained by the Federal Circuit, the nation’s top patent court, this type of patent allows “patentees to express a claim limitation by reciting a function to be performed rather than by reciting structure for performing that function.” 

The Federal Circuit, the nation's top patent court, has explicitly allowed this type of patent claim, and they are most used in software patents. Allowing broad “functional” claiming is part of what’s led software patents to become the disaster they have for developers and ordinary internet users. 

As patent scholar Mark Lemley explained in a 2012 research paper on functional claiming, it’s similar to allowing a pharmaceutical inventor to claim “an arrangement of atoms that cures cancer,” and assert their patent against any chemical, in any form, that achieves the purpose of curing cancer. “Indeed, the whole idea seems ludicrous,” he wrote. 

Lemley’s paper goes through the history of functional claiming, which has had ups and downs throughout American history. The idea of a “means-plus-function” claim is that functional claiming is allowed, as long as it’s connected to a “structure” described in the specification of the patent. 

Functional claiming has taken off in software patents. The Federal Circuit established rules that disclosing an “algorithm” would constitute the type of structure that could allow a patent. But the court set the bar for what an “algorithm” is to be shockingly low. You don’t have to send in a mathematical formula at all; prose or even a flow chart is sufficient. 

Would-be patent owners have definitely taken advantage of the idea that a flow chart can constitute an “algorithm.” It’s allowed patent trolls to get patents on things like using mathematical proofs, using a lyrics website, and clocking in to work.  

The law on software patents is so bad it requires real reforms. In our Defend Innovation whitepaper discussing patent reform ideas, EFF proposed installing strong limits on functional claiming and requiring those who want software patents to provide running code for each patent claim. Those are still good and necessary ideas. 

The ‘508 Patent’s “Algorithm”

The ‘508 patent’s supposed “algorithm” is truly a nothingburger. Its primary claim just describes a bunch of things computers do, strung together. Yet Landmark’s lawyers argued that the patent contained a “detailed six-step algorithm” with the following steps. (The “station” here is a general-purpose computer.)

1. The station reading textual data from memory; 
2. The station reading graphical data from memory;
3. The station accepting user input; 
4. Displaying, after accepting user input, textual data along with mutually-related graphical data describing more than one transaction option; 
5. Analyzing data provided by the user of the station or data received from a remote location; 
6. Depending on the result of the analysis, retrieving additional data from mass memory. 

In other words, getting data and analyzing it. 

Of course, “processing” or “accepting” data and “analyzing” it are simply generic verbs that don’t tell you how to do anything. That was exhaustively pointed out in the 66-page order finding Landmark’s patent claim to be invalid. Landmark’s citations “contain no explanation of how that data is ‘analyzed’ or how one would program the ‘processor’ to conduct such processing,” explained District Judge Thomas Schroeder. 

Landmark History 

At some point in 2019, Landmark Technology stopped filing lawsuits, and a new entity called “Landmark Technology A” began using the ‘508 patent, again targeting small businesses. Litigation has revealed that while inventor Lawrence Lockwood owned the original entity, Landmark Technology A—the newer company that has been sued by the state of Washington— is wholly owned by an IP consultant named Raymond Mercado. 

The Washington State Attorney General was able to identify more than 1,800 businesses threatened by Mercado, but the number may be much higher. And while this stupid patent was filed in 1995, it is related to an even earlier stupid patent, which won our Stupid Patent of the Month award a few years ago, for terrorizing even more small businesses. 

Lawrence Lockwood used these patents to terrorize hundreds of small businesses, demanding that any sized e-commerce operation: bakers, brownie shops, an organic farm, and many others, all pay him a royalty payment for making basic use of the internet economy. 

Adding insult to injury is the fact that there’s no evidence that “inventor” Lawrence Lockwood made any contribution whatsoever to software. Lockwood, a former travel agent, started his long patent trolling career by suing American Airlines for their software system. In that litigation, Lockwood admitted under oath that he had “never, for any length of time, used a personal computer.” When asked what he did for a living, he said that he simply litigated patents, according to a 2003 profile of Lockwood in the Los Angeles Times. 

We’ve lived with ultra-aggressive patent trolls like Landmark and its predecessor, PanIP, for more than two decades now. Congress needs to think about how to reel them in and must reject proposed bills that would actually help trolls get more broad patents, and ruin our existing legal defenses against them. 

• NAPCO v. Landmark Technology A Complaint
• NAPCO v. Landmark Technology A Opinion And Order 

The majority of high-tech patent lawsuits are brought by patent trolls—companies that exist not to provide products or services, but primarily have a business using patents to threaten others’ work. 

Some politicians are proposing to make that bad situation worse. Rather than taking the problem of patent trolling seriously, they want to encourage more bad patents, and make life easier—and more profitable—for the worst patent abusers. 

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Congress Must Not Bring Back The Worst Computer Patents

The Patent Eligibility Restoration Act, S. 2140, (PERA), sponsored by Senators Thom Tillis (R-NC) and Chris Coons (D-DE) would be a huge gift to patent trolls, a few tech firms that aggressively license patents, and patent lawyers. For everyone else, it will be a huge loss. That’s why we’re opposing it, and asking our supporters to speak out as well. 

Patent trolling is still a huge, multi-billion dollar problem that’s especially painful for small businesses and everyday internet users. But, in the last decade, we’ve made modest progress placing limits on patent trolling. The Supreme Court’s 2014 decision in Alice v. CLS Bank barred patents that were nothing more than abstract ideas with computer jargon added in. Using the Alice test, federal courts have kicked out a rogue’s gallery of hundreds of the worst patents. 

Under Alice’s clear rules, courts threw out ridiculous patents on “matchmaking”, online picture menus, scavenger hunts, and online photo contests. The nation’s top patent court, the Federal Circuit, actually approved a patent on watching an ad online twice before the Alice rules finally made it clear that patents like that cannot be allowed. The patents on “bingo on a computer?” Gone under Alice. Patents on loyalty programs (on a computer)? Gone. Patents on upselling (with a computer)? All gone. 

Alice isn’t perfect, but it has done a good job saving internet users from some of the worst patent claims. At EFF, we have  collected stories of people whose careers, hobbies, or small companies were “Saved by Alice.” It’s hard to believe that anyone would want to invite such awful patents back into our legal system—but that’s exactly what PERA does. 

PERA’s attempt to roll back progress goes beyond computer technology. For almost 30 years, some biotech and pharmaceutical companies actually applied for, and were granted, patents on naturally occuring human genes. As a consequence, companies were able to monopolize diagnostic tests that relied on naturally occurring genes in order to help predict diseases such as breast cancer, making such testing far more expensive. The ACLU teamed up with doctors to confront this horrific practice, and sued. That lawsuit led to a historic victory in 2013 when the Supreme Court disallowed patents on human genes found in nature. 

If PERA passes, it will explicitly overturn that ruling, allowing human genes to be patented once again. 

That’s why we’re going to fight against this bill, just as we fought off a very similar one last year. Put simply: it’s wrong to let anyone patent basic internet use. It hurts innovation, and it hurts free speech. Nor will we stand idly when threatened with patents on the building blocks of human life—a nightmarish concept that should be relegated to sci-fi shows. 

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Some Things Shouldn't Be Patented

This Bill Destroys The Best Legal Defense Against Bad Patents 

It’s critical that Alice allows patents to be thrown out under Section 101 of the patent law, before patent trolls can force their opponents into expensive litigation discovery. This is the most efficient and correct way for courts to throw out patents that never should have been issued in the first place. If the patent can’t pass the test under Alice, it’s really not much of an “invention” at all. 

But the effectiveness of the Alice test has meant that some patent trolls and IP lawyers aren’t making as much money. That’s why they want to insist that other areas of law should be used to knock out bad patents, like the ones requiring patents to be novel and non-obvious. 

This position is willfully blind to the true business model of patent trolling. The patent trolls know their patents are terrible—that’s why they often don’t want them tested in court at all. Many of the worst patent holders, such as Landmark Technology or some Leigh Rothschild entities, make it a point to never even get very far in litigation. The cases rarely get to claim construction (an early step in patent litigation, where a judge decides what the patent claims mean), much less to a full jury trial. Instead, they simply leverage the high cost of litigation. When it’s hard and expensive for defendants to file a motion challenging a patent, the patents often don’t even get properly tested. Then trolling companies get to use the judicial system for harassment, making their settlement demands cheaper than fighting back. For the rare defendant that fights back, they can drop the case. 

This Bill Has No Serious Safeguards

The bill eliminates the Alice test and every other judicial limitation on abstract patents that has formed over the decades. After ripping down this somewhat effective gate on the worst patents, it replaces it with a safeguard that’s nearly useless. 

On page 4 of the bill, it states that: 

“performing dance moves, offering marriage proposals, and the like shall not be eligible for patent coverage, and adding a non-essential reference to a computer by merely stating, for example, ‘‘do it on a computer’’ shall not establish such eligibility.” 

The addition of “do it on a computer” patents is an interesting change to last year’s version of the same bill, since that’s a specific phrase we used to critique the bill in our blog post last year. 

After Alice, EFF and others rightly celebrated courts’ ability to knock out most “do it on a computer” patents. But “do it on a computer” isn’t language that actually gets used in patents; it’s a description of a whole style of patent. And this bill specifically allows for such patents. It states that any process that “cannot be practically performed without the use of a machine (including a computer)” will be eligible for a patent. 

This language would mean that many of the most ridiculous patents that have been knocked out under Alice in the past decade will survive. They all describe the use of processors, “communications modules” and other jargon that requires computers. That means patents on an online photo contest, or displaying an object online, or tracking packages, or making an online menu—could once again become part of patent troll portfolios. All will be more effective at extorting everyday people and real innovators making actual products. 

“To See Your Own Blood, Your Own Genes”

From the 1980s until the 2013 Myriad decision, the U.S. Patent and Trademark Office granted patents on human genomic sequences. If researchers “isolated” the gene—a necessary part of analysis—they would then get a patent that described isolating, or purified, as a human process, and insist they weren’t getting a patent on the natural world itself.

But this concept of patenting an “isolated” gene was simply a word game, and a distinction without a difference. With the genetic patent in hand, the patent-holder could demand royalty payments from any kind of test or treatment involving that gene. And that’s exactly what Myriad Genetic did when they patented the BRCA1 and BRCA2 gene sequences, which are important indicators for the prevalence of breast or ovarian cancer. 

Myriad’s patents significantly increased the cost of those tests to U.S. patients. The company even sent some doctors cease and desist letters, saying the doctors could not perform simple tests on their own patients—even looking at the gene sequences without Myriad’s permission would constitute patent infringement. 

This behavior caused pathologists, scientists, and patients to band together with ACLU lawyers and challenge Myriad’s patents. They litigated all the way to the Supreme Court, and won. “A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated,” the Supreme Court stated in Association for Molecular Pathology v. Myriad Genetics. 

A practice like granting and enforcing patents on human genes should truly be left in the dustbin of history. It’s shocking that pro-patent lobbyists have convinced these Senators to introduce legislation seeking to reinstate such patents. Last month, the President of the College of American Pathologists published an op-ed reminding lawmakers and the public about the danger of patenting the human genome, calling gene patents “dangerous to the public welfare.”  

As Lisbeth Ceriani, a breast cancer survivor and a plaintiff in the Myriad case said, “It’s a basic human right to see your own blood, your own genes.”

We can’t allow patents that allow internet users to be extorted for using the internet to express themselves, or do business. And we won’t allow our bodies to be patented. Tell Congress this bill is going nowhere. 

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Reject Human Gene Patents

The U.K. Parliament has passed the Online Safety Bill (OSB), which says it will make the U.K. “the safest place” in the world to be online. In reality, the OSB will lead to a much more censored, locked-down internet for British users. The bill could empower the government to undermine not just the privacy and security of U.K. residents, but internet users worldwide. 

A Backdoor That Undermines Encryption

A clause of the bill allows Ofcom, the British telecom regulator, to serve a notice requiring tech companies to scan their users–all of them–for child abuse content.This would affect even messages and files that are end-to-end encrypted to protect user privacy. As enacted, the OSB allows the government to force companies to build technology that can scan regardless of encryption–in other words, build a backdoor. 

These types of client-side scanning systems amount to “Bugs in Our Pockets,” and a group of leading computer security experts has reached the same conclusion as EFF–they undermine privacy and security for everyone. That’s why EFF has strongly opposed the OSB for years. 

It’s a basic human right to have a private conversation. This right is even more important for the most vulnerable people. If the U.K. uses its new powers to scan people’s data, lawmakers will damage the security people need to protect themselves from harassers, data thieves, authoritarian governments, and others. Paradoxically, U.K. lawmakers have created these new risks in the name of online safety. 

The U.K. government has made some recent statements indicating that it actually realizes that getting around end-to-end encryption isn’t compatible with protecting user privacy. But given the text of the law, neither the government’s private statements to tech companies, nor its weak public assurances, are enough to protect the human rights of British people or internet users around the world. 

Censorship and Age-Gating

Online platforms will be expected to remove content that the U.K. government views as inappropriate for children. If they don’t, they’ll face heavy penalties. The problem is, in the U.K. as in the U.S., people do not agree about what type of content is harmful for kids. Putting that decision in the hands of government regulators will lead to politicized censorship decisions. 

The OSB will also lead to harmful age-verification systems. This violates fundamental principles about anonymous and simple access that has existed since the beginning of the Internet. You shouldn’t have to show your ID to get online. Age-gating systems meant to keep out kids invariably lead to adults losing their rights to private speech, and anonymous speech, which is sometimes necessary. 

In the coming months, we’ll be watching what type of regulations the U.K. government publishes describing how it will use these new powers to regulate the internet. If the regulators claim their right to require the creation of dangerous backdoors in encrypted services, we expect encrypted messaging services to keep their promises and withdraw from the U.K. if that nation’s government compromises their ability to protect other users.