Seeing Patent Trolls Clearly: 2022 in Review

The internet can be a powerful tool for communicating, collaborating, and finding community. But lawsuits and threats from patent trolls have been an obstacle to the dream of a free and open internet. That’s why EFF has been fighting back against them for more than 15 years. 

Patent trolls are companies that are focused on suing and threatening over patents, not on offering actual goods or services. Very often, they use software patents to sue over basic business processes, like making picture menus or taking event photographs. It’s all too easy to get patents on things like this because the patent system is just a bad fit for software.

In the first 3 quarters of 2022, 64% of all patent lawsuits were filed by patent trolls—companies whose primary focus is making money from patents, not providing services or goods. In the high-tech space, patent trolls filed 88% of all lawsuits. 

Defending Our Progress 

Since EFF has started working to improve the patent system, we’ve seen a few big steps forward, like the introduction of inter partes review (IPR), and the 2014 Alice v. CLS Bank Supreme Court ruling. 

The Alice precedent, which is more than 8 years old now, has done a good job of knocking out many software patents that never should have been issued in the first place. 

EFF’s “Saved by Alice” project has highlighted some of the small businesses and individuals who have benefited from the more balanced approach courts have taken since the Alice ruling. 

However, patent trolls and companies that extensively license patents have long been lobbying against Alice. This year, we saw an attack on the law that we knew would come eventually. An extreme bill, the “Patent Eligibility Restoration Act,” would have eviscerated Alice completely and allowed for some of the worst software patents to make a comeback. It would have even legalized the patenting of human genes, a practice that is ruled out under current Supreme Court precedent. 

This bill didn’t advance in the current Congress, in part because many EFF supporters spoke out about it and contacted their Senators. But because patent trolls and other pro-patent extremists have so much to gain by chipping away at Alice, we don’t expect it will be the last attempt to turn back some of the progress we’ve made. 

Two Big Steps Forward for Sunshine in the Patent System 

In September, EFF got a big win in our long-running case seeking to unseal records related to Uniloc’s patent trolling. This case began in 2018 as an effort to understand heavily redacted filings in a patent infringement case between Uniloc, a patent troll, and Apple. 

Thanks to our litigation, the great majority of Uniloc’s previously secret court records are now public. That includes most of a table of licensing agreements that Uniloc used to convince a private equity firm called Fortress to fund its patent-trolling activities. 

In November, EFF got involved in a case where several patent troll companies were under scrutiny by a Delaware federal judge, who was concerned that the true owners of the patent trolls had “perpetrated a fraud on the court.”  The trolls’ lawyers sought to have an appeals court shut down the investigation. EFF filed a brief in that case to explain why it’s critical that judges be allowed to demand more information about the patent troll companies that are utilizing our public courts for their business. The U.S. Court of Appeals for the Federal Circuit accepted EFF’s brief, denied the petition brought by patent troll Nimitz Technologies, and allowed the investigation to proceed. 

Because of cases like the ones EFF got involved in, federal courts are increasingly demanding more disclosure in patent cases, including disclosures about litigation funding. That’s a positive trend. Patent trolls rely on secrecy to perpetuate their business. When the public and elected officials learn more about how they operate, it becomes clear that our patent system needs big changes in order to be a real public benefit. 

This article is part of our Year in Review series. Read other articles about the fight for digital rights in 2022.