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Read and share online: https://www.fsf.org/blogs/licensing/software-patents-are-another-kind-of-disease

Dear Ruben Safir,

Lifesaving technology should belong to everyone, but the United States
Patent & Trademark Office (USPTO) is working day and night to restrict
access, even during a global pandemic.

On Friday May 8th, the USPTO announced the COVID-19 Prioritized
Examination Pilot Program. Doctored up to look like a helpful
response to a global pandemic, it's actually the exact opposite. Under
the program, the USPTO will waive some fees associated with
accelerated application review for patents on works that require US
Food and Drug Administration (FDA) approval. They'll also work to try
and get these applications granted within six months. These changes
will make it easier and faster for people to gain patents on any
technology related to the pandemic, including patents on
software. It's not in our scope to determine the impact of other kinds
of patents, but we know specifically that they are terrible for
software, and at a time where software is critical to saving lives,
expediting software patent applications will only cause harm.

To be clear, this program does not speed up FDA approval, or help to
get lifesaving technology to the people who need it most. It doesn't
create supply chains or help fund the development of medical
technologies and software. All it does is make it easier for someone
to "own" that technology, to make it quicker and cheaper to restrict
others from implementing and sharing tools that people need to
survive. It rushes the patent application process so that someone
could be able to sue others trying to save seriously ill patients
around the world before the global pandemic is over.

While the crisis was unfurling, the GNOME Foundation was still
expending resources fighting off a patent suit started in 2019. On May
20, 2020, the GNOME Foundation succeeding in securing a release and
covenant not to sue from the patent aggressor for all software
released under a free license. This was a major win for software
freedom that took months and months to realize. But the threat
remains, and the only reason someone would need to get their patent
granted sooner is because they want to start their lawsuits sooner, to
disrupt the flow of medical technology in order to siphon off profits
from those seeking to alleviate the worst pandemic in a century.

Taken together with a recently released report from the USPTO
patting themselves on the back for ignoring the US Supreme Court in
order to increase the number of software patents, it's clear that the
USPTO views its mandate as requiring them to crank out as many patents
as they possibly can. In Alice v. CLS Bank, the US Supreme Court
limited the patent eligibility of software implemented on a general
purpose computer. As the USPTO report stated, this increased the
number of patent applications receiving initial rejections. So last
year the USPTO released "guidance" that weakened those limitations,
and now the number of software patents speeding through its pipeline
has increased once again.

Even in normal times, increasing software patent restriction is
harmful to everyone. Software patents threaten all developers, putting
them in the line of fire for ruinous lawsuits simply for creating and
sharing their own code. Until the day when we can completely end all
software patents, we should be reducing the harm done, not coming
up with programs and guidance to accelerate the damage. But in the
midst of a global crisis where hundreds of thousands have already
died, where supply chains for medical technology are stretched beyond
limits, creating a cheaper and easier fast track for causing further
patent disruption is downright criminal.

While the USPTO is pretending to help with the response to COVID-19,
it is actually throwing a supercharged wrench into the gears of
medical supply distribution, so we the people have to come up with our
own response that actually helps. Software patents cut people off from
one another, but if we're going to respond adequately and humanely to
this crisis, we need to all work together. That is why we are asking
you to join our COVID-19 Response Team on the Free Software
Directory. The Free Software Directory is a volunteer-run catalog
of over 16,000 free software packages. It helps users to find software
that they can modify and share with their friends. The ethics of free
software are more important than ever, and we need to help people gain
access to software that respects their rights. On the COVID-19
Response Team, we're directing our efforts towards ensuring that
everyone has access to medical software, 3D printing designs of
medical technology, and other tools that will be useful in the fight
against this global pandemic. You can jump in and start working
right away, or join us every Friday from 12 pm to 3pm EDT in the #fsf
irc channel on Freenode.

Software patents are another kind of disease, and the USPTO has
decided to become a super-spreader of that infection, which will in
turn worsen the physical infections. Join together with us to fight
back. We hope to see you every Friday, but here are some other ways
that you can help:

• Have a 3D printer? Help the HACKERS and HOSPITALS initiative to
  print protective devices and other medical equipment.

• Support our work in the fight against software patents by becoming
  an associate member of the Free Software Foundation, or making a
  donation.

Sincerely,

Donald Robertson, III

Licensing & Compliance Manager