I was going to write up a full article, but I'll just post this here instead.
I was thinking shame might work a little bit. Most people, even lawyers and patent trolls, think of themselves as being good people. Calling them out directly can have quite an affect.
Dr. Dale Schoenefeld, a CS professor and bureaucrat at University of Tulsa (http://www.utulsa.edu/offices-and-services/information-techn...), is on the board. He probably doesn't care that I think he's a scumbag, but I imagine he might care how he is perceived by students and his colleagues.
In order for this to be effective, defendants need to be able to discover other defendants being sued by the particular troll firm for that particular patent. Then the defense can be funded by multiple companies and the defense becomes more formidable.
This almost screams for a website - a central place to facilitate matchmaking between companies under suit by a particular troll.
Unfortunately you're not going to see many companies saying "Yeah! We're being sued by that guy too!" because that quickly reduces to "we're being sued!", which never goes over well with investors, shareholders, employees, etc.
Who is fighting to keep software patents as-is? Who are we up against? I have NEVER read anything in their favor. If we live in a society where the laws need to be changed, why are they just not changing? What horrors could actually come from abolishing software patents?
I just don't understand why this is still an argument. Who are we even arguing against? I never see anyone disagreeing with the argument. It's as if everyone hates the same thing yet it continues to exist and all we have to do is change it. So someone just change it.
There's a big pharma lobby who love patents and lobby for more of the same.
This is in itself a problem: there is no separation between types of patents, so we can't (easily) get separate policy on software, business methods, pharma etc. I imagine, for example, no one would particularly complain about software patents if they only lasted for 2 years. But the way it is now, that would mean all patents would expire after 2 years, and the pharma lobby would hate that.
Having said all that, best thing is to get rid of all patents, and we'll start again when someone proves that narrow patents in a particular field have a benefit to the economy.
Speaking of pharmaceutical patents, I'd like to see two changes:
1. There should be automatic licensing of the patent to anyone who wishes to make the drug, at a royalty rate on gross sales determined by statute. I'm thinking something around 5%.
2. The patent term should be extended from 20 years to something like 100 years.
The idea here is that drug companies invest huge amounts in developing new drugs. Many of these don't even pan out. Some make it into production, and they are patented for 20 years. The drug company then has to charge a lot to make up for that huge investment before the patent expires, and the generics come on market.
So, for the first 20 years we consumers pay something like $30-50/month (after insurance--it could be $200 or more a month without insurance) for these drugs until they go generic, then it drops to around $4/month (and that is without insurance!).
Under my proposal, the generics would come out right away, for maybe around $5/month, and the original company would make back its investment over a very long term instead of needing to make it back over a relatively short term.
Without the benefit of patent protection, software companies
would be forced to rely on secrecy which limits the public’s
ability to learn from software innovations, since patent
documents are a significant source of technological disclosure.
See, e.g., In re Alappat, 33 F.3d 1526, 1571 (Fed. Cir. 1994)
(Newman, J., concurring). Given the reality that software source
code is human readable, and object code can be reverse
engineered, it is difficult for software developers to resort to
secrecy. Thus, without patent protection, the incentives to
innovate in the field of software are significantly reduced.
Patent protection has promoted the free sharing of source code
on a patentee’s terms—which has fueled the explosive growth
of open source software development.
and
The economic benefits that flow from software innovation are the
product of significant investment in research and development.
And the incentives provided by the patent system encourage that
investment by providing the same quid pro quo as in other
technology fields: the promise of economic rewards in exchange
for the public disclosure of useful inventions. See generally
Testimony of Nicholas M. Donofrio, Executive Vice President,
Innovation and Technology, IBM Corp., Before the H.R. Comm. on
Science (July 21, 2005); Cong. Office of Tech. Assessment,
Finding a Balance: Computer Software, Intellectual Property, and
the Challenge of Technological Change, 23 (1992) (recognizing
that “patent protection is of importance to the U.S. software
industry”). The exclusive rights granted to patentees
encourage software innovators to pursue inventions that they
might not otherwise pursue, in broad and diverse areas.
and
Patent protection for software protects innovators from
appropriation of their efforts by “free-riders.” Without
patent protection, the risk of appropriation may force software
innovators into other, more promising ventures. See, e.g.,
Richard S. Gruner, Better Living Through Software: Promoting
Information Processing Advances Through Patent Incentives, 74
St. John’s L. Rev. 977, 1004 (2000). The free-rider problem is
particularly acute in the software sector because software
products are “vulnerable to rapid, inexpensive copying that
undercuts the initial developer’s opportunity to benefit * *
*, thereby undermining its incentives to invest in software
development.” Pamela Samuelson, et al., A Manifesto Concerning
the Legal Protections of Computer Programs, 94 Colum. L. Rev.
2308, 2332 (1994). While literal copying is the province of
copyright law, the ease of appropriating software source code
makes the patented inventions included in the code uniquely
susceptible to instant appropriation.
Supreme Court, Benson: That software is just an algorithm. You can't patent an algorithm. There may exist some kind of software that can be patented, but not ones that look like this.
Supreme Court, Flook: We see what you did there. This patent is just software to solve a mathematical problem. The post-solution activity isn't novel. There may exist software that could be patentable, but not software that looks like this.
Supreme Court, Diehr: This one's different from Flook in that they're claiming novelty in parts of the invention outside the software.
Federal Circuit, State Street: Actually I think patents that aren't distinguished in the least from the one in Flook are OK.
Supreme Court, Bilski: Pay attention to Benson, Flook, Diehr. Nothing's changed since these decisions. Ignore State Street.
In summary, the reason software is patentable today is that lots of people persist in ignoring the Supreme Court. There may in the future be some kind of software the Supreme Court might think patentable, but every software patent we talk about here on HN, especially related to patent trolls, is indistinguishable from Flook.
The tacit assumption upon which this argument rests is that the trolls are guaranteed to lose in court (at least after an appeal). While that might be a fair assumption in the most egregious cases, in many circumstances the lower court will not be particularly skilled in patent law and an appeal to a specialized appeals court is by no means certain. A rational businessman might well chose to settle a case even if the probability of losing is just 5% simply because the penalties for patent infringement are so high in comparison to the settlement costs.
This is a situation where the locally optimal solution is globally suboptimal. You're doomed to a death of a thousand cuts if you play along with patent trolls, even if each cut is comparatively small.
Clearly "let's cooperate and put trolls out of business" isn't happening right now, and other than the possibility that no one has thought of it before now (doubtful) there are two obvious reasons:
- For a given case where a troll sues multiple parties, each party is relying on the other defendants to cooperate, but the lowest risk alternative is to settle early and be done with it. The patent troll knows this, and will try to cut down the number of cooperators until all are forced to settle.
- Since most cases don't offer much resistance and often settle, patent trolls are able to fund an expansion of their operations, and they simultaneously gain credibility ("you'd better settle, Microsoft already did").
So the historical practice of settling with trolls works against companies who would think not to do so, and any group of companies that tries to band together in defense is in a situation where defection ruins the defense, and the incentive to defect starts high and increases with each additional defection.
As Mr. Crutchfield says, it's a shakedown that exploits a peculiarity of the patent system (namely, the combination of the ability to sell patents with the ability for NPEs to bring infringement suits). This is an emergent property of the legal system. The right approach is to change the system.
I doubt I'll have to convince many here that nothing of value would be lost if NPEs were no longer allowed to bring infringement suits for dormant patents.
So it's a straightforward defect-weighted prisoner's dilemma. The best option for any one party is to settle (regardless of what others do), but the best overall result would be for nobody to settle.
One solution to the prisoner's dilemma is for everyone to get together and give up the ability to defect, say by incorporating it into corporate bylaws. Another is to drastically change the cost structure, such as by insurance or a mutual contract that holds anyone who settles liable for a large amount. If not done carefully, either of these could tie a party's hands against legitimate suits, but they are alternatives (after a fashion).
Game theory has analyzed the prisoner's dilemma to death. If there's any hope for a grassroots solution, it's there.
Oh, I completely agree that in theory there are solutions to this problem. In practice, it's going to be difficult to get a group of companies to rip off their steering wheels when the game of chicken starts.
Perhaps a group of lawyers and actuaries should get some money together and create an anti-patent-troll company, viz., a company that sells patent troll insurance. They get a whole bunch of companies as clients, and contractually obligate them to litigate (via the insurance company) trollish patent suits. Centralize and incentivize.
The OP also argues that the patent could be defeated by a patent review.
"Virtually none of the patents that patent trolls buy would be issued today. The vast majority of these patents would not survive a U.S. Patent & Trademark Office patent review. Most were issued during the 1990s when the standards for business process patents were very low."
The OP goes on to say that the victims of patent trolls band together to finance the review to make it cheaper than settling.
It is impossible to expect the USPTO to determine novelty and non-obviousness for software patents. Imagine how difficult it would be to examine mechanical engineering patents if millions of people carried machine shops around in their backpacks.
> The OP also argues that the patent could be defeated by a patent review.
Yes, but the OP ignores the probability of failure. I'm claiming that even a small probability of failure would be sufficient to deter most businesses from pursuing the OP's advice because the costs of a defeat are so much greater than the costs of a settlement.
> The OP goes on to say that the victims of patent trolls band together to finance the review to make it cheaper than settling.
I'm not disputing that. The problem I'm pointing out does not have to do with financing the review, but with the fines that are due if you lose the case. Even if you band together to finance the review, if you lose, you have to pay the fines individually.
I've always wondered: what if you just responded to a patent troll with "screw you" and refused to play their game? What if you just did the absolute minimum and didn't take their bait to reach settlement? What could you face? Could you go to jail?
Patents are a civil matter. You'd end up involved in civil litigation, which means you pay an attorney to defend you, or the plaintiff would win by default. Usually, the goal is to settle prior to litigation, because litigation is incredibly expensive.
If you litigate and the plaintiff wins the case -- or you don't fight and lose by default -- the plaintiff gets a judgement against you. The judge/jury determine what you must pay to the plaintiff. With a judgement in hand, the plaintiff must start collection proceedings. This is a not-so-straight-forward process, and can take months, if not years, depending upon how evasive the defendant is and how aggressive the plaintiff attorney is.
Expect to receive garnishment orders for your pay, as well as other treats, such as having your checking account emptied without notice. Being evasive may also require additional court appearances and court orders. Failure to comply with a court order can result in charges of contempt. This usually means a fine, but can also result in jail time if the act is egregious.
At the end of the day, you may find yourself filing bankruptcy, in which case the trustee will be the one after your assets.
The whole time this is happening, it's very difficult to operate. Having someone chase you while paying thousands of dollars in attorney fees makes life very difficult.
The bottom line is that you cannot simply "refuse to play their game".
I think your best bet might be to go pro se, where you represent yourself and just file a flurry of extensions, change of venues, discoveries etc. Learn a few rules and then burn the trolls time like crazy. If you have a low income, most states will even waive your court and filing fees.
While we're on the topic of annoyances that get in the way of worthwhile activities, how about websites that publish interesting articles and then stick eye-catching auto-scrolling displays right next to them? It never ceases to amaze me how rarely it seems to occur to web-based publishers that someone might actually want to read their stuff.
Well, thank goodness for Readable.
Hey, maybe I should patent auto-scrolling ads, and then sue sites like this one. That would be patent trolling with positive social impact as the goal.
I wish someone had a patent on the business process of buying patents just to sue companies that actually try to provide some value to the world and then went around suing these parasitic lowlives.
I was thinking shame might work a little bit. Most people, even lawyers and patent trolls, think of themselves as being good people. Calling them out directly can have quite an affect.
MacroSolve is one of the companies suing iOS developers over forms (http://www.readwriteweb.com/mobile/2011/05/macrosolve-joins-...).
Dr. Dale Schoenefeld, a CS professor and bureaucrat at University of Tulsa (http://www.utulsa.edu/offices-and-services/information-techn...), is on the board. He probably doesn't care that I think he's a scumbag, but I imagine he might care how he is perceived by students and his colleagues.