Most of these are really excellent, such as the suggestion to require example code for claims implemented in software, to allow the regional courts of appeal to decide patent cases, and to defer most discovery until after claim construction.
On the other hand, some of the suggestions simply beg the question. What is a "software patent" or a "patent troll?" Software is eating the world--mechanisms that would have in the 1990s been implemented in ASICs are implemented in microcontrollers. What people think of "software" they think of typical application code that mostly moves bits from point A to point B or react to user input. Software where each individual line of code is straightforward and requires little thought. An R&D project might spend millions of dollars to write a bunch of code that will be thrown away--and can still be considered successful if it yields useful algorithms. These are qualitatively different kinds of software, but it's devilishly difficult to draw the line.
Of course the easy solution is to eliminate software patents. I'm not convinced that's a good thing long-term. I look at the tech industry, and see one where product companies rather than hard R&D companies make all the money. The folks at SRI who invented Siri get a small license fee, while Apple makes billions by wrapping it with a candy shell. It's an industry where there is tremendous pressure to vertically integrate, because you can only justify R&D on basic technologies if you also control the product that gets sold to end-users.
> What is a "software patent" or a "patent troll?"
Patent trolls are Non Practicing Entities who file lawsuits against companies who are actually practicing an invention. The problem though is that when the United States was created, it chose to drop the requirement to practice for a very specific reason: it discriminates against the poor and middle class, who might be smart enough to invent some world changing technology but have no way to raise millions of dollars to produce their invention. Such a requirement was seen as anti-democratic by the founding fathers, and historically NPEs have actually made huge contributions to human knowledge... E.g. the person who invented the computer didn't have the money to actually go out and build one.
There certainly have come to be a lot of abuses with the current system that need to fixed. But it's worth keeping in mind that while Mark Cuban himself might not be a bad guy, the reason the founding fathers chose to let people file patents without having to build out the invention was precisely to protect us from people like him, who could come in and just steal someone else's efforts wholesale because they happen to have more money. And in the past couple years, a lot of law professors who were originally against NPEs have now reversed their opinions and acknowledged that the situation is more complex than they had originally believed.
The problem with software patents is that they claim to own the destination and not the solution to a specific problem. If I am able to reproduce one click without looking at the corresponding patent, it should not be patentable.
I'm inclined to think of patent reform not as a "cure" for the failing patent system, but simply a palliative measure for everyone's protection during its inevitable decline
I think there should be no distinction between software or hardware or even mathematics. What counts is the amount of research effort that went into an invention. It would be unfair if a mechanical engineer could make millions, while an equivalently capable software engineer could not. Therefore, I think the EU has it all wrong.
And this is regardless of whether or not the patent system as a whole should be abolished.
> The folks at SRI who invented Siri get a small license fee, while Apple makes billions by wrapping it with a candy shell.
Just today I read an article which said that Android's voice recognition was greatly improved by using (old) neural nets algorithm but with more data and CPU power than the initial attempts.
Do not assume that good functionality is necessarily the result of an improvement of algorithm.
> What is a "software patent" or a "patent troll?"
Defining a software patent is not hard. A patent is a software patent if you can infringe it entirely with software. Software can't infringe a patent for a cholesterol drug or a light bulb, so those aren't software patents.
> I look at the tech industry, and see one where product companies rather than hard R&D companies make all the money. The folks at SRI who invented Siri get a small license fee, while Apple makes billions by wrapping it with a candy shell.
There is so much more to a modern smartphone than just Siri that the idea that SRI should be getting any significant fraction of the revenue is a little disingenuous. The "problem" with software is that you can have ten thousand discrete inventions that each individually would have been a revolution in 1995 but the market still expects you to package them all together and sell the device for around $600, and then sell a device with all the same software but less powerful hardware for $150. After the costs of hardware design, manufacturing, marketing, distribution, administration, etc., plus the cost of writing the software to actually implement tens of thousands of "inventions", you would be lucky to give each inventor a penny per device.
But the real problem is you can't accurately price the contribution each inventor makes. There are too many of them that are each worth such a small percentage of the total that spending any kind of significant resources to evaluate their individual value isn't cost effective. But if you can't price patents accurately then you don't have a functioning market, which is fundamentally why we end up with such poor quality patents in software -- if the bad ones go on the pile with the good ones and they all get a similar payout then it's a lot easier to collect rent by filing low quality patents than actually spending money on useful R&D.
> It's an industry where there is tremendous pressure to vertically integrate, because you can only justify R&D on basic technologies if you also control the product that gets sold to end-users.
I don't see what vertical integration has to do with it. Microsoft circa 2002 had every incentive to invest in operating systems R&D, and they did, but they didn't need to sell the hardware or control the market for third party applications to do it.
If you're actually selling software to users you're competing against the previous version of your own software as much as you are against competitors anyway. And the patent can't convince users to upgrade once they already have a version that implements it. If anything software patents are contributing to the vertical integration because a vendor that can establish a monopoly or otherwise strong market position using patents (and any combination of other tactics) can use it to leverage that market position into control of vertical markets.
If you want less vertical integration then what you want is more modular systems, open standards and free software. Which is the opposite of what software patents do.
In my opinion, software elements in a claim should be treated as means-plus-function claims.
I'm not sold on ending the Federal Circuit. It would just lead to forum shopping and arbitraging circuit splits. That would only increase litigation due to uncertainty.
I'll have to read the EFFs white paper to see why they feel this way. But IMO the Fed circuit + SCOTUS keeping them honest really works.
The solution to the patent system is to abolish it. The whole thing. Seek compensation for the act of coming up with innovative ideas instead of trying to apply artificial state granted monopolies to them after the fact. It would be so much healthier to have money pumped into the R&D of common utility goods for the sake of the innovation than to continue to perpetuate patent warfare while trying to attach a flawed profit motive to intellectualism.
The usual retort to that is "so you don't want to cure cancer then". The pharmaceutical industry very strongly depends on patents, and would easily be able to convince government through money and "cancer" not to abolish it.
The practical thing then is to come up with a solution for pharma, and then abolish the patent system.
Basically the idea is that there are extremely entrenched interests, so it is unlikely that they will just roll over and die. Instead, there should be a plan for deprecating the patent system.
I'm disappointed by the EFF's stance here: it simply isn't strong enough.
I'm in the camp that believes there shouldn't be software patents period. Simple as that.
As for ending the exclusive jurisdiction of the Federal Circuit Court of Appeals on patent case appeals, I assume this is because that court has frequently been overly friendly to patent plaintiff claims. Some might argue it's gone so far as regulatory capture. What's more, the court has repeatedly been overturned by the SCOTUS.
That's a fair argument but what they're forgetting was that the USCoAftFC was introduced to solve a problem. We have the problem now that there is inconsistent treatment of patent cases in Federal district courts, leading plaintiffs to file cases in "friendly" jurisdictions, most notably East Texas.
Prior to 1982, you had the same problem at the appeals level and you had a rush to file appeals in friendly jurisdictions. This court was certainly intended to provide consistent treatment of patent cases and--ideally--allow for experts in patent law to handle such cases.
But the fact that this court has really had trouble finding a patent they didn't like is a sideshow: the real problem here is software patents.
You can't patent a mathematical formula and as anyone with any kind of Computer Science education could tell you, an algorithm is essentially indistinguishable from a mathematical function. The fact that the US courts have ignored this or simply been unable to comprehend it is at the root of the problem.
This is what is supposed to be true in Europe: software "as such" can not be patented. The issue we have is that corrupted patent organizations such as the EPO twisted the "as such" so much that they managed to reverse the original meaning (ie. you can not patent a software "as such", but patenting its use inside of a computer is legit - I love lawyers)
That makes it look like the EFF has been bought and paid for by Mark Cuban.
Who's Mark Cuban? See Wikipedia.[1] His expertise is in promoting sales-oriented companies and getting them acquired by bigger companies. His first big deal was selling Micro Solutions (a reseller of boxed software) to CompuServ. Then he got into sports webcasting ("broadcast.com") and sold that to Yahoo during the first dot-com boom. In each case, someone else created the content, and Cuban marked it up and resold it. That's his business model.
Wikipedia on "broadcast.com": "The record IPO made instant financial successes out of the company's employees through stock options, making 100 employees millionaires on paper (although most of them were unable to exercise their options and sell their shares before the stock price dropped) and founders Cuban and Wagner billionaires."
Is that usage correct? Shouldn't he be described as the holder of the Mark Cuban Chair to Eliminate Stupid Patents, rather than being described as the Mark Cuban Chair to Eliminate Stupid Patents?
Also, every time I read about the Mark Cuban Chair to Eliminate Stupid Patents I have a mysterious urge to watch "Zoolander".
How do other countries patent systems compare with the US'? Can inspiration for changes be drawn from them or are they just as bad/worse? I ask because I only ever hear of trolling in the US system.
I know of one important distinction between the US and India with regards to medicine patents. In India you can only patent the means of making a medicine, not the medicine itself. So if you can come up with a substantially different way of making the same thing you have equal rights to it.
This doesn't really go far enough. It's doesn't address the more basic problems of a for-profit patent office (the USPO has been required to be self-sustaining since Bush), nor does it address unfair practices of high upfront and ongoing renewal costs and worse, the inherently unfair practice of being able to buy expedited service. It is also counter productive to shorten the time span of patents b/c it means all the money required to develop it has to be recouped very quickly. Better to have longer periods, but with clearer and stricter requirements for what is actually patentable.
Honestly, I think the best way to get rid of this nonsense, keeping everyone happy, is to allow patents but to enforce a "profit cap".
Basically, if an entity has invested $X into RND for patent Y, then patent Y should be valid until some $(Z*X) has been earned by the entity. Where Z is some constant; or stepped like tax brackets.
Example: A company develops some new software: it cost $500,000 of Engineering effort. They are awarded a patent. The patent should be valid until that company has earned $5 million (Z=10; ie 1000% ROI).
Example: A company develops some new drug: it cost $5,000,000,000 for RND. They are awarded a patent. The patent should be valid until that company has earned $50 Billion (Z=10; ie 1000% ROI).
I agree it may be hard to prove "amount spent on patent" or "profit earned from patent". However, at least to me, it seems as hard as the IRS auditing a company's taxes, or as hard as auditing a public companies quarterly financial disclosures.
This might be naive on my part but it seems like we could help the situation quite a bit, at least for software patents, by just reducing the amount of time for which new software patents are valid. It's simple, easy to understand and implement, more consistent with the speed at which the software market evolves, would reduce the perceived value of bogus patents making trolling less likely, free up technology sooner for everybody to benefit and still offer some protection to innovators.
Right now they're good for between 14 to 20 years (1) which seems too long to me. I'm not sure what the right number is, maybe between 5 - 10? Even that seems long, but then again I don't have anything innovations to patent so I'm probably biased.
3-4 year limit on software patents would certainly help. It puts the incentives closer to where they should be, and is a straightforward fix too, unlike revamping / abolishing the whole patent system.
It certainly doesn't fully address the fundamental problems of the system, but it could be a reasonable first step.
It's not a good idea. Ideally rights should be for as long as the life of the inventor. Instead of a cut-off time, I've heard people espouse a system of valuation and, in some cases, taxation, so that over time a patent becomes increasingly affordable for others to buy out and put into the public domain.
I hope that after the Alice vs CLS Supreme Court ruling EFF & Co reintroduce the abolishing of "business method" patents, which Microsoft and IBM fought so hard to take out of the previous bill.
I've often thought that a simple change would be to require you to prove that it is in the public interest for your patent to be enforced. Patents only exist for public benefit anyway.
I don't think that a patent troll, for example, could prove that the world would be a better place by them enforcing their patents. If they could, then we'd be better off letting them do it (by definition).
1. The patent term should be shorter for software patents. It should last no more than five years from the application date.
Software doesn't move that fast. The Internet is now over 30 years old. It's been 61 years since the first FORTRAN compiler. At various times in the past, aircraft technology and radio technology advanced at least as fast as computer technology. Computing is not special; it's just a currently active area.
2. If the patent is invalid or there’s no infringement, patent trolls should have to pay the winning party’s legal fees.
This provides a way for big companies to intimidate patent holders. A small patent holder can be threatened with huge legal bills. The odds of winning a patent infringement lawsuit are about 40-50%, and even if you have a strong patent, it's common to lose.
3. Patent applicants should be required to provide an example of running software code for each claim in the patent.
The USPTO has the right to demand a working model if they are not convinced the patented concept would work. At one time, they did. (Patent models are cute collectables now.) Current USPTO policy is to demand a working model only for things such as antigravity machines or perpetual motion machines. Unworkable patents do not seem to be a problem in the software area.
4. Infringers should avoid liability if they independently arrive at the patented invention.
Absolutely not. Infringers will routinely lie about that, claiming independent invention, and it's really tough to prove intent. There's a provision in current law which allows for a defense of independent invention for, I think, one year after patent issue. That's sufficient.
5. Patents and licenses should be public upon filing. Patent owners should be required to keep their public ownership records up-to-date.
Patent applications are already published at the 18 month mark.
6. The law should do more to limit damages so that a patent owner can’t collect millions if the patent represented only a tiny fraction of a defendant’s product.
A patent is the right to say "no, you can't do that". Infringers aren't entitled to practice the patent at all and then just pay damages if they lose.
7. Congress should commission a study and hold hearings to examine whether software patents
actually benefit our economy at all.
The purpose of the patent system isn't to "benefit the economy". It's to "promote the Progress of Science and useful Arts", according to the Constitution.
As for "patent trolls", according to the EFF's own database[1], there are only a few real "patent trolls", with one firm in Texas being the big generator of threatening letters. The top firm has 15 letters in the EFF's database. (They've sent more.) There are a very small number of patents being "trolled".
The EFF was arguing for this in the previous session of Congress. Once it came out how weak their case was, the legislation was dropped.
[+] [-] rayiner|11 years ago|reply
On the other hand, some of the suggestions simply beg the question. What is a "software patent" or a "patent troll?" Software is eating the world--mechanisms that would have in the 1990s been implemented in ASICs are implemented in microcontrollers. What people think of "software" they think of typical application code that mostly moves bits from point A to point B or react to user input. Software where each individual line of code is straightforward and requires little thought. An R&D project might spend millions of dollars to write a bunch of code that will be thrown away--and can still be considered successful if it yields useful algorithms. These are qualitatively different kinds of software, but it's devilishly difficult to draw the line.
Of course the easy solution is to eliminate software patents. I'm not convinced that's a good thing long-term. I look at the tech industry, and see one where product companies rather than hard R&D companies make all the money. The folks at SRI who invented Siri get a small license fee, while Apple makes billions by wrapping it with a candy shell. It's an industry where there is tremendous pressure to vertically integrate, because you can only justify R&D on basic technologies if you also control the product that gets sold to end-users.
[+] [-] Alex3917|11 years ago|reply
Patent trolls are Non Practicing Entities who file lawsuits against companies who are actually practicing an invention. The problem though is that when the United States was created, it chose to drop the requirement to practice for a very specific reason: it discriminates against the poor and middle class, who might be smart enough to invent some world changing technology but have no way to raise millions of dollars to produce their invention. Such a requirement was seen as anti-democratic by the founding fathers, and historically NPEs have actually made huge contributions to human knowledge... E.g. the person who invented the computer didn't have the money to actually go out and build one.
There certainly have come to be a lot of abuses with the current system that need to fixed. But it's worth keeping in mind that while Mark Cuban himself might not be a bad guy, the reason the founding fathers chose to let people file patents without having to build out the invention was precisely to protect us from people like him, who could come in and just steal someone else's efforts wholesale because they happen to have more money. And in the past couple years, a lot of law professors who were originally against NPEs have now reversed their opinions and acknowledged that the situation is more complex than they had originally believed.
[+] [-] venomsnake|11 years ago|reply
[+] [-] patcon|11 years ago|reply
[+] [-] amelius|11 years ago|reply
And this is regardless of whether or not the patent system as a whole should be abolished.
[+] [-] renox|11 years ago|reply
Just today I read an article which said that Android's voice recognition was greatly improved by using (old) neural nets algorithm but with more data and CPU power than the initial attempts. Do not assume that good functionality is necessarily the result of an improvement of algorithm.
[+] [-] AnthonyMouse|11 years ago|reply
Defining a software patent is not hard. A patent is a software patent if you can infringe it entirely with software. Software can't infringe a patent for a cholesterol drug or a light bulb, so those aren't software patents.
> I look at the tech industry, and see one where product companies rather than hard R&D companies make all the money. The folks at SRI who invented Siri get a small license fee, while Apple makes billions by wrapping it with a candy shell.
There is so much more to a modern smartphone than just Siri that the idea that SRI should be getting any significant fraction of the revenue is a little disingenuous. The "problem" with software is that you can have ten thousand discrete inventions that each individually would have been a revolution in 1995 but the market still expects you to package them all together and sell the device for around $600, and then sell a device with all the same software but less powerful hardware for $150. After the costs of hardware design, manufacturing, marketing, distribution, administration, etc., plus the cost of writing the software to actually implement tens of thousands of "inventions", you would be lucky to give each inventor a penny per device.
But the real problem is you can't accurately price the contribution each inventor makes. There are too many of them that are each worth such a small percentage of the total that spending any kind of significant resources to evaluate their individual value isn't cost effective. But if you can't price patents accurately then you don't have a functioning market, which is fundamentally why we end up with such poor quality patents in software -- if the bad ones go on the pile with the good ones and they all get a similar payout then it's a lot easier to collect rent by filing low quality patents than actually spending money on useful R&D.
> It's an industry where there is tremendous pressure to vertically integrate, because you can only justify R&D on basic technologies if you also control the product that gets sold to end-users.
I don't see what vertical integration has to do with it. Microsoft circa 2002 had every incentive to invest in operating systems R&D, and they did, but they didn't need to sell the hardware or control the market for third party applications to do it.
If you're actually selling software to users you're competing against the previous version of your own software as much as you are against competitors anyway. And the patent can't convince users to upgrade once they already have a version that implements it. If anything software patents are contributing to the vertical integration because a vendor that can establish a monopoly or otherwise strong market position using patents (and any combination of other tactics) can use it to leverage that market position into control of vertical markets.
If you want less vertical integration then what you want is more modular systems, open standards and free software. Which is the opposite of what software patents do.
[+] [-] rhino369|11 years ago|reply
I'm not sold on ending the Federal Circuit. It would just lead to forum shopping and arbitraging circuit splits. That would only increase litigation due to uncertainty.
I'll have to read the EFFs white paper to see why they feel this way. But IMO the Fed circuit + SCOTUS keeping them honest really works.
[+] [-] zanny|11 years ago|reply
[+] [-] rogerbinns|11 years ago|reply
The practical thing then is to come up with a solution for pharma, and then abolish the patent system.
[+] [-] kanzure|11 years ago|reply
Here is my proposal for that sort of strategy: https://groups.google.com/d/msg/openmanufacturing/vS4ju1VqXb...
Basically the idea is that there are extremely entrenched interests, so it is unlikely that they will just roll over and die. Instead, there should be a plan for deprecating the patent system.
[+] [-] cletus|11 years ago|reply
I'm in the camp that believes there shouldn't be software patents period. Simple as that.
As for ending the exclusive jurisdiction of the Federal Circuit Court of Appeals on patent case appeals, I assume this is because that court has frequently been overly friendly to patent plaintiff claims. Some might argue it's gone so far as regulatory capture. What's more, the court has repeatedly been overturned by the SCOTUS.
That's a fair argument but what they're forgetting was that the USCoAftFC was introduced to solve a problem. We have the problem now that there is inconsistent treatment of patent cases in Federal district courts, leading plaintiffs to file cases in "friendly" jurisdictions, most notably East Texas.
Prior to 1982, you had the same problem at the appeals level and you had a rush to file appeals in friendly jurisdictions. This court was certainly intended to provide consistent treatment of patent cases and--ideally--allow for experts in patent law to handle such cases.
But the fact that this court has really had trouble finding a patent they didn't like is a sideshow: the real problem here is software patents.
You can't patent a mathematical formula and as anyone with any kind of Computer Science education could tell you, an algorithm is essentially indistinguishable from a mathematical function. The fact that the US courts have ignored this or simply been unable to comprehend it is at the root of the problem.
[+] [-] xroche|11 years ago|reply
[+] [-] omgitstom|11 years ago|reply
Daniel Nazer Staff Attorney and the Mark Cuban Chair to Eliminate Stupid Patents Electronic Frontier Foundation [email protected]
[+] [-] Animats|11 years ago|reply
Who's Mark Cuban? See Wikipedia.[1] His expertise is in promoting sales-oriented companies and getting them acquired by bigger companies. His first big deal was selling Micro Solutions (a reseller of boxed software) to CompuServ. Then he got into sports webcasting ("broadcast.com") and sold that to Yahoo during the first dot-com boom. In each case, someone else created the content, and Cuban marked it up and resold it. That's his business model.
Wikipedia on "broadcast.com": "The record IPO made instant financial successes out of the company's employees through stock options, making 100 employees millionaires on paper (although most of them were unable to exercise their options and sell their shares before the stock price dropped) and founders Cuban and Wagner billionaires."
So that's who's behind this.
[1] https://en.wikipedia.org/wiki/Mark_Cuban
[+] [-] tzs|11 years ago|reply
Also, every time I read about the Mark Cuban Chair to Eliminate Stupid Patents I have a mysterious urge to watch "Zoolander".
[+] [-] k-mcgrady|11 years ago|reply
[+] [-] transfire|11 years ago|reply
[+] [-] transfire|11 years ago|reply
[+] [-] yazaddaruvala|11 years ago|reply
Basically, if an entity has invested $X into RND for patent Y, then patent Y should be valid until some $(Z*X) has been earned by the entity. Where Z is some constant; or stepped like tax brackets.
Example: A company develops some new software: it cost $500,000 of Engineering effort. They are awarded a patent. The patent should be valid until that company has earned $5 million (Z=10; ie 1000% ROI).
Example: A company develops some new drug: it cost $5,000,000,000 for RND. They are awarded a patent. The patent should be valid until that company has earned $50 Billion (Z=10; ie 1000% ROI).
I agree it may be hard to prove "amount spent on patent" or "profit earned from patent". However, at least to me, it seems as hard as the IRS auditing a company's taxes, or as hard as auditing a public companies quarterly financial disclosures.
[+] [-] eCa|11 years ago|reply
[1] http://en.wikipedia.org/wiki/Hollywood_accounting
[+] [-] frederickf|11 years ago|reply
Right now they're good for between 14 to 20 years (1) which seems too long to me. I'm not sure what the right number is, maybe between 5 - 10? Even that seems long, but then again I don't have anything innovations to patent so I'm probably biased.
(1) http://patents.stackexchange.com/questions/312/how-long-are-...
[+] [-] raquo|11 years ago|reply
It certainly doesn't fully address the fundamental problems of the system, but it could be a reasonable first step.
[+] [-] transfire|11 years ago|reply
[+] [-] unknown|11 years ago|reply
[deleted]
[+] [-] higherpurpose|11 years ago|reply
http://www.washingtonpost.com/blogs/the-switch/wp/2013/11/20...
[+] [-] Singletoned|11 years ago|reply
I don't think that a patent troll, for example, could prove that the world would be a better place by them enforcing their patents. If they could, then we'd be better off letting them do it (by definition).
[+] [-] pbhjpbhj|11 years ago|reply
Wow, I can't believe award of costs isn't standard in such cases already. Incredible.
[+] [-] aercolino|11 years ago|reply
[+] [-] yazaddaruvala|11 years ago|reply
[deleted]
[+] [-] Animats|11 years ago|reply
1. The patent term should be shorter for software patents. It should last no more than five years from the application date.
Software doesn't move that fast. The Internet is now over 30 years old. It's been 61 years since the first FORTRAN compiler. At various times in the past, aircraft technology and radio technology advanced at least as fast as computer technology. Computing is not special; it's just a currently active area.
2. If the patent is invalid or there’s no infringement, patent trolls should have to pay the winning party’s legal fees.
This provides a way for big companies to intimidate patent holders. A small patent holder can be threatened with huge legal bills. The odds of winning a patent infringement lawsuit are about 40-50%, and even if you have a strong patent, it's common to lose.
3. Patent applicants should be required to provide an example of running software code for each claim in the patent.
The USPTO has the right to demand a working model if they are not convinced the patented concept would work. At one time, they did. (Patent models are cute collectables now.) Current USPTO policy is to demand a working model only for things such as antigravity machines or perpetual motion machines. Unworkable patents do not seem to be a problem in the software area.
4. Infringers should avoid liability if they independently arrive at the patented invention.
Absolutely not. Infringers will routinely lie about that, claiming independent invention, and it's really tough to prove intent. There's a provision in current law which allows for a defense of independent invention for, I think, one year after patent issue. That's sufficient.
5. Patents and licenses should be public upon filing. Patent owners should be required to keep their public ownership records up-to-date.
Patent applications are already published at the 18 month mark.
6. The law should do more to limit damages so that a patent owner can’t collect millions if the patent represented only a tiny fraction of a defendant’s product.
A patent is the right to say "no, you can't do that". Infringers aren't entitled to practice the patent at all and then just pay damages if they lose.
7. Congress should commission a study and hold hearings to examine whether software patents actually benefit our economy at all.
The purpose of the patent system isn't to "benefit the economy". It's to "promote the Progress of Science and useful Arts", according to the Constitution.
As for "patent trolls", according to the EFF's own database[1], there are only a few real "patent trolls", with one firm in Texas being the big generator of threatening letters. The top firm has 15 letters in the EFF's database. (They've sent more.) There are a very small number of patents being "trolled".
The EFF was arguing for this in the previous session of Congress. Once it came out how weak their case was, the legislation was dropped.
[1] https://trollingeffects.org/lawfirms