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Saving High-Tech Innovators from Egregious Legal Disputes Act

In the USA, the Saving High-Tech Innovators from Egregious Legal Disputes Act (SHIELD) is a 2012 legislative proposal to make software patent (and computer hardware patent) litigants pay the legal fees of their victims if the judge decides that the litigation was clearly without merit.

The proposal's justification talks about patent trolls but nothing in the proposal text limits it to trolls. Trolls are however the most common filers of frivolous law suits.

Worthwhile or waste of time?

The bad

It doesn't invalidate any software patents or prevent the patent office from granting them, so it's a missed opportunity (in its current form). There's the risk that excitement around this proposal will take interest away from real solutions such as to exclude software from patentability or shield software from litigation.

It only helps companies. Free software and independent software projects usually don't get hit with frivolous law suits. Their problems come without litigation or even threats.

The good

It will reduce one type of trolling: threats made frivolously by patent holders in the hope of out of court settlements by software developers who are afraid to risk the costs of a court case.

The definition of "software patent" is broad, which would be good if we want to reuse it in a future proposal.

It's also good that the legislation acknowledges that software patents are different. Separating software patents from other patents is a precondition for abolition of software patents.


Adoption of this proposal would be good. However, when discussing this proposal, asking for it to be changed to abolition is more important than supporting the current proposal.

Defining software patents

Interestingly, the proposal gives a definition of software patents:

(3) SOFTWARE PATENT.—The term ‘software patent’ means a patent that covers—
    (A) any process that could be implemented in a computer regardless of whether a computer is specifically mentioned in the patent; or
    (B) any computer system that is programmed to perform a process described in subparagraph (A).

And for "computer":

(1) COMPUTER.—The term ‘computer’ means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes—
    (A) any data storage facility or communications facility directly related to or operating in conjunction with such device; and
    (B) any processor or peripheral, such as a monitor or input device, directly related to or operating in conjunction with such device.

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