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The Patent Mafia and What You Can Do To Break It Up 205

Posted by Soulskill from the he-sends-one-of-yours-to-east-texas-you-send-one-of-his-to-norcal dept.
colinneagle sends this quote from an article about the ever-growing patent racket in the tech industry: "The lawsuits are raging all across the tech world. Oracle sues Google, Yahoo sues Facebook, they counter-sue. Others threaten, others buy more patents and the circle goes round and round. Don't be fooled by the lawsuits between these tech titans though. The real cost that the patent mafia extracts from the tech world is on the smaller companies who can't afford to battle the Apples and Microsofts of the world. Their choices are far simpler. They can abandon their innovations or they can choose to pay and allow the Mafiosos to wet their beaks. Also, don't be fooled about who the real losers are here. The the real losers are you and me. ... So what do do? Here is my opinion. I would make it just as expensive for the offensive patent prosecutors. Just as the government put in the RICO act to combat organized crime, I would put a similar law in place on patents. RICO calls for treble damages. I would have treble awards of costs and legal fees. If a patent holder sues another entity for patent violation and that suit fails, the plaintiff who brought the suit should pay treble damages to the defendant. Three times what the defendant paid to defend."
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The Patent Mafia and What You Can Do To Break It Up More

The Patent Mafia and What You Can Do To Break It Up

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  • Treble? (Score:5, Funny)

    by amicusNYCL ( 1538833 ) on Tuesday May 08, 2012 @05:19PM (#39934959)

    RICO calls for treble damages. I would have treble awards of costs and legal fees. If a patent holder sues another entity for patent violation and that suit fails, the plaintiff who brought the suit should pay treble damages to the defendant.

    I think that something far more bassic would work.

  • What happened to innocent ? (Score:5, Interesting)

    by morbingoodkid ( 562128 ) on Tuesday May 08, 2012 @05:20PM (#39934981) Homepage

    Very good idea. Another problem that nobody seem to notice is that the patent system is the wrong way arround. In normal criminal cases it is up to the prosecution to prove that the defendant perpetrated a crime. Inocent until proven guilty.

    The patent system works the other way around it is up to the defendant to prove that they have not violated a patent. Guilty until proven innocent.

    Do not really make sense to me. How about you ?

    • Re:What happened to innocent ? (Score:4, Informative)

      by Grond ( 15515 ) on Tuesday May 08, 2012 @06:48PM (#39935877) Homepage

      The patent system works the other way around it is up to the defendant to prove that they have not violated a patent. Guilty until proven innocent.

      That's not accurate. Patents are presumed valid by statute, but they aren't presumed infringed. The plaintiff still has to make out a prima facie case of patent infringement, which the defendant can then rebut or defend against in some other way (e.g. by showing that the patent is invalid or unenforceable).

    • Re:What happened to innocent ? (Score:4, Informative)

      by N7DR ( 536428 ) on Tuesday May 08, 2012 @08:22PM (#39936811) Homepage

      Another problem that nobody seem to notice is that the patent system is the wrong way arround. In normal criminal cases it is up to the prosecution to prove that the defendant perpetrated a crime. Inocent until proven guilty.

      The patent system works the other way around it is up to the defendant to prove that they have not violated a patent. Guilty until proven innocent.

      That is simply incorrect. The plaintiff has to convince the jury that every limitation in the claim(s) in question is infringed by the defendant. In a typical claim this means that perhaps half a dozen requirements must be shown to be met, and the burden of proof is on the plaintiff to show that every one of those limitations is met. The standard by which the jury decides the case is the "preponderance of the evidence".

      And each individual limitation will typically have several debatable words in it, so the plaintiff also has to convince the judge and/or the jury that those words mean what they say they mean (usually, but not always, that is decided by a judge).

      If the plaintiff fails to make a convincing case at any point in this sequence, then the patent is not infringed.

      (Invalidity is another matter entirely. It's a different standard -- clear and convincing evidence -- and so it's less common for a patent is judged invalid, although it certainly does happen.)

    • Reverse onus is true of process patents (Score:4, Insightful)

      by Geof ( 153857 ) on Tuesday May 08, 2012 @09:43PM (#39937297) Homepage

      This is absolutely correct for process patents. This is a requirements of the 1994 TRIPs (Trade-Related Aspects of Intellectual Property Rights) treaty. Here is the text of Article 34 [wto.org]:

      1. For the purposes of civil proceedings in respect of the infringement of the rights of the owner referred to in paragraph 1(b) of Article 28, if the subject matter of a patent is a process for obtaining a product, the judicial authorities shall have the authority to order the defendant to prove that the process to obtain an identical product is different from the patented process. Therefore, Members shall provide, in at least one of the following circumstances, that any identical product when produced without the consent of the patent owner shall, in the absence of proof to the contrary, be deemed to have been obtained by the patented process:

      (a) if the product obtained by the patented process is new;

      (b) if there is a substantial likelihood that the identical product was made by the process and the owner of the patent has been unable through reasonable efforts to determine the process actually used.

      2. Any Member shall be free to provide that the burden of proof indicated in paragraph 1 shall be on the alleged infringer only if the condition referred to in subparagraph (a) is fulfilled or only if the condition referred to in subparagraph (b) is fulfilled.

      3. In the adduction of proof to the contrary, the legitimate interests of defendants in protecting their manufacturing and business secrets shall be taken into account.

      Whether this applies to software patents I am not sure (IANAL). As business process [nuvocom.com] patents, it may, though it's not clear to me what the "product" would be. In any case, this is clearly the direction in which the law has been moving.

      Ironically, by the way, negotiation that resulted in TRIPs was initiated by developing countries who found their economic development was being retarded by patents held by developed countries. Once the process started, however, it was hijacked by an unholy alliance of the pharmaceutical and entertainment industries. Poor countries were then effectively forced to join by developed countries, who withdrew from GATT leaving a choice between losing access to western markets and enacting onerous patent and copyright laws. Because of the impact on the cost of drugs for poor people, patents are a life-and-death issue. IP regulations, meanwhile, are expensive to implement, particularly in countries that lack the legal expertise:

      the US Agency for International Development (USAID) now spends around a quarter of its annual budget on legal and regulatory training, including technical assistance from the US Patent and Trademark Office (USPTO), to help bring domestic legislation into compliance with TRIPs, including assessments of draft laws and recommendations regarding existing laws. (Christopher May and Susan K. Sell, Intellectual Property Rights: A Critical History, 2006

  • Nice idea... Won't happen. (Score:5, Insightful)

    by Antony T Curtis ( 89990 ) on Tuesday May 08, 2012 @05:21PM (#39934989) Homepage Journal

    FWIW, this is my personal opinion:

    It would never happen. Today's purpose of patents is different from when the concept was created. The use today is to prevent a small or single owner nimble upstart from usurping the business of an incumbent elephant and potentially gutting the cash cow of it's shareholders.

    The aforementioned incumbents would fight tooth and nail, with large campaign contributions and gifts, to prevent such a law from ever passing.

    • Re:Nice idea... Won't happen. (Score:4, Insightful)

      by UltimaBuddy ( 2566017 ) on Tuesday May 08, 2012 @05:28PM (#39935117)
      The end result is that the innovators move elsewhere.

    • Re:Nice idea... Won't happen. (Score:5, Insightful)

      by the eric conspiracy ( 20178 ) on Tuesday May 08, 2012 @05:30PM (#39935133)

      Many patent trolls are in fact nimble upstarts.

      The answer is much simpler. Get rid of business process and software patents. They are proving to be a detriment to the software industry.

      • So, in this day of actuators and microcontrollers, how would you actually do this without getting rid of *all* patents?

        It's become trivially easy to implement *any* part of any mechanism in software.

        It's easy to make platitudes about this stuff... actually coming up with a rigorous legal definition that would rule out the things you like while still allowing the "good" patents is really hard, if not impossible.

        Of course, perhaps all patents have outlived their usefulness... but that's a different disc

      • Get rid of business process and software patents. They are proving to be a detriment to the software industry.

        Get rid of automotive patents. They are proving to be a detriment to the auto industry.
        Shall I continue or was that car analogy sufficient to communicate the point already? The patents exist in all industries and they manage to function just fine. The solution is simple - license the patent or innovate around the patent. Other industries do it so why should the software industry be different?

    • Does not reduce exposure to patent litigation (Score:4, Interesting)

      by Morgaine ( 4316 ) on Tuesday May 08, 2012 @06:43PM (#39935843)

      You're right for more than just the reason you give. TFA also fails to understand that the patent system is structured to encourage litigation and to benefit the legal profession on both sides of a patent conflict. TFA's suggestion would do nothing to change this.

      Ideally software and business method patents should disappear altogether, but if one is seeking alternatives then the first goal should be to limit the audience exposed to patent litigation.

      That can be done in a number of ways, one being to exclude private citizens and corporations below a certain turnover from patent liability altogether.

      This would encourage the creation of many small competing businesses and would be hard for megacorps to argue against, because all politicians pay lip service to supporting small businesses. Also, the turnover cap automatically ensures that competing corps cannot grow to the size of the patent holder, so arguments against it are really quite weak.

      As you point out, the incumbents would still fight tooth and nail against it, but they would be on much weaker ground than today, and most importantly, lawyers would be presented with a much reduced population of potential victims.

      Note also that the many calls to limit patent duration drastically, eg. to 5 years, would have exactly the same effect of reducing the number of people exposed to patent litigation. That idea is good too, but it doesn't level the playing field as well as a turnover cap would do. Perhaps both approaches should be used together.

      • Limiting patent duration is a great idea (as is having a turnover cap), but there are plenty of cases where patents of a longer duration should be granted. I'd be in favour of a system where patent applications are examined for "triviality", i.e. how hard/expensive was it to come up with the invention being patented. Trivial crap like 1-click shopping then gets 3 years; the inventions that actually took some effort or thinking get perhaps 6 or 10 years, while stuff that takes hundreds of millions of dolla

    • Re: (Score:3, Informative)

      by rufty_tufty ( 888596 )

      I find it interesting - given you mention the history of patents - that one of the first outcomes of a rigorous patent system was to break up the guilds. Knowledge that had been held secret for centuries was suddenly in the public domain. Give it twenty years or so and everyone could use the secrets of the guild.
      Now you have the reverse situation where patents are protecting the technology guilds - but at least what they are doing is not secret, and never will be. is that perhaps enough, patents have now b

  • This is all not only out of control, but INSANE! This needs to be fixed somehow, but I have little faith in the American government to even understand the problem.

    • Re: (Score:2)

      by Hatta ( 162192 )

      They understand it all too well. It's just that from their perspective it's not a problem.

  • Small patent holders (Score:4, Insightful)

    by Anonymous Coward on Tuesday May 08, 2012 @05:26PM (#39935081)

    Just thinking about this, it might feed the patent trolls and mostly hurt small to medium sized companies.

    If I'm a little guy and hold a patent that, say, Apple violates. I sue Apple and they simply say they spent a few million. It's a small amount for them but if I lose, I am bankrupt. So, it doesn't help the little guy.

    So, my approach would be to "sell" my patent to a company I just formed for a couple of hundred bucks onllne and that corporate entity sues the big guy. If I win, that company has some scheme to pay me back the award. If I lose, I fold the temporary company and I'm out of pocket a few hundred bucks. Pretty close to the model used by patent trolls.

    So, I can't see how this might be different...

  • Won't work. (Score:5, Insightful)

    by Caerdwyn ( 829058 ) on Tuesday May 08, 2012 @05:29PM (#39935125) Journal

    Scenario: a "little guy" gets a patent. A "big guy" violates it. The little guy takes the big guy to court, and the big guy throws an entire legal department at the little guy, and essentially buys the result. The little guy then has to pay treble damages of the expenses of that great big huge legal department, and goes out of business because of the punitive award. As part of the punitive award as the little guy goes under, the ownership of the little guy's patent then goes to the big guy.

    Want a patent held by a little guy? Willfully violate it, then bleed the little guy dry with protracted court proceedings. You'll get the patent through bankruptcy. And if the little guy doesn't defend his patent... free IP!

    Think it through. "Automatic" damages means you create a system that can easily be gamed by armies of lawyers far better at manipulating the system they crafted than you, and ties the hands of the judge to prevent it.

    • Re: (Score:2)

      by gutnor ( 872759 )

      They would probably try to settle, and normally the amount should not be too miserable. As much as big companies can be evil, at the end of the day, they run a business - what they can buy for 1M they won't sue for 2M.

      That works in the other direction aswell. Except for patent troll, there is very little to make buy shutting down a small business when it is cheaper to buy it. Again, that does not work with patent troll.

      That is not good of course, that is a travesti of the original goal of patents in t

    • Actual court cases prove you incorrect. If you were right patent trolls wouldn't be an issue. See NTP vs RIM or i4i vs Microsoft. Simply having more money isn't going to win you any trial where a layer could retire on 1% of the potential payout.

  • The little guy. (Score:5, Insightful)

    by Hatta ( 162192 ) on Tuesday May 08, 2012 @05:29PM (#39935129) Journal

    Suppose if I'm a small independent inventor with a patent, and Conglom-O misappropriates my patent. I only have kilobucks to spend on a lawyer, while Conglom-O has megabucks. Predictably, their expensive lawyers beat my bargain basement representation. Now I'm on the hook for 3 times what they paid for their defense? How is that any better for me than the abolition of patents?

    • Re: (Score:2)

      by tomhath ( 637240 )

      Suppose if I'm a small independent inventor with a patent, and Conglom-O misappropriates my patent.

      Well, that's basically the opposite of this article (which is patent trolls crushing you for misappropriating their patent). But I kind of agree, maybe it's time to abolish all patents, not just software. Then the little guy who wants to start a company can go head-to-head with the likes of Oracle - whether he's the inventor with a new idea or a start-up with a better implementation of an API.

      • Then the little guy who wants to start a company can go head-to-head with the likes of Oracle

        But then there's the problem of having no protection at all. Let's say you develop a spiffy new widget that solves a need in a genuinely novel way, but don't really have the capital to manufacture/distribute it. You talk to a manufacturer who passes on the idea, and then the next thing you know, your widget is available to the masses at Wal-Mart, made by an arm's-length affiliate of the original manufacturer,
        • Sure there is. Treat little guys different, legally, than big corporations. And if corporations ever try to use a little guy as a proxy to get around that, punish them with public executions of whoever made that decision, and also whoever was in effective charge of the company (such that simply hiring a figurehead CEO wouldn't dodge the death penalty for whoever's actually running the company).

          It won't happen, but it's nice to think about, and would solve that problem pretty handily.

        • Re: (Score:2)

          by tomhath ( 637240 )
          I'll try to make my sarcasm more obvious next time...
          • Sorry about that - I've seen other folks earnestly arguing exactly what you were saying. After re-reading your post the sarcasm comes through loud and clear. :-)

    • Re:The little guy. (Score:4, Interesting)

      by Overzeetop ( 214511 ) on Tuesday May 08, 2012 @05:52PM (#39935397) Journal

      This is where the lawyers win. There will be law firms who will examine your case and, if it looks 80-90% winnable, will take it on commission - say 60% of the final award. You'll probably be on the hook for fixed percentage of the costs plus expenses in the case of a loss. The lawyers either cover their costs or win big, the little guy comes out even in the best scenario, and the megabucks write it off on the balance sheet and design around your patent.

      • First, there are ethics rules as to the size of a contingency fee. Usually they top out at around 1/3d, more or less. However, if the case is lost, the client owes the attorney nothing. (Otherwise, what would be the point?)

        Second, you need to be the plaintiff, which may not be the case depending on how the matter is structured.

        Third, now you're just relying on the still-finite resources of the lawyers. A big enough opponent can still conduct the outspending strategy successfully. (Because while a lawyer han

    • Explain i4i vs Microsoft then.

    • The big problem in lawsuits seems to be the big guys throwing money at the problem till they win. What about if there was some sort of requirement for equal representation funding?

      Perhaps the money from both sides is pooled, and then split evenly to provide representation for both.

  • We REALLY need to set up single-payer legal representation, even before looking at it for medical care.

    • Re: (Score:2)

      by slew ( 2918 )

      Single payer legal is probably even worse than single payer medical. The biggest problems with single payer medical is manyfold, but mostly over-use/fraud and rationing.

      Even though perhaps some wacko wants every diagnostic test known for imaginary conditions or perhaps someone helps a doctor friend (or some friendly doctor that is giving kickbacks) to overuse (or just overbill) some unneeded or fictitious medical procedure, there is a quantifiable physical upper limit on the amount of overuse/fraud one ind

  • Writing laws is like writing software (Score:2, Insightful)

    by Anonymous Coward

    It's easy to write something that works correctly for the situation you have in mind; the challenge is to make sure that it also works correctly in all the other situations that may arise in practice. Whoever suggested the law described in the summary is, I'm sure, not a good lawyer or a good software engineer,

  • Too complicated (Score:5, Insightful)

    by king neckbeard ( 1801738 ) on Tuesday May 08, 2012 @05:38PM (#39935235)
    Why not just get rid of patents altogether, or at least software and business method patents?

  • So basically make it suicide (Score:4, Insightful)

    by nedlohs ( 1335013 ) on Tuesday May 08, 2012 @05:39PM (#39935249)

    for the little guy who invented something, say a more efficient engine, to sue the huge corporation that just copies their invention.

    Since if he loses he gets hit with 3x the costs of the defendant's super expensive lawyers if he happens to get an idiot jury or made some technical error somewhere.

    I have a simpler solution - only grant patents for things that are actually inventions. "A button which when clicked buys the product for the user using the credit card they entered previously and the shipping address they entered previously" is not an invention, for eample.

  • The FIX (Score:5, Interesting)

    by andydread ( 758754 ) on Tuesday May 08, 2012 @05:39PM (#39935261)
    - Limit all patents to 5 years
    - Abolish UI/Gesture and all software patents
    - Abolish lifeform and seed patents.

    • Re: (Score:2)

      by Grond ( 15515 )

      - Limit all patents to 5 years

      Startups often take at least that long to get going, whereas established companies already have the funding and infrastructure in place to move products to market. If the patent term is too short then patents have no value for startups but retain value for established companies.

      And what about patents for things like pharmaceuticals and other products that have long regulatory lead times? What if the patent covers a technology that needs a breakthrough in another area in order to be commercially viable?

      Abolish UI/Gesture and all software patents

      Firs

      • Re: (Score:2)

        by mark-t ( 151149 )

        Oh, and if you're going to abolish all of the existing software patents then you'll have to pay the patent owners reasonable compensation under the Fifth Amendment

        It's worth pointing out that slave owners received no compensation when slavery was no longer legal. Why should patent holders?

        • Re: (Score:2)

          by Grond ( 15515 )

          Because slavery was abolished at the constitutional level. Prior laws abolishing slavery typically did so gradually in ways that avoided takings claims. When Congress abolished slavery outright in the District of Columbia in 1862, it compensated slaveowners loyal to the Union. See George Rutherglen, State Action, Private Action, and the Thirteenth Amendment [virginialawreview.org] , 94 Va. L. Rev. 1367, 1373 (2008).

          I suppose a takings claim could be avoided if software patents were abolished by constitutional amendment, but th

          • I would first argue that it's not a taking, as patents are not property. But there are some strategies besides that. Personally, I'd suggest a combination of statutory licensing and rendering certain claims for infringement non-actionable.

    • Comment removed based on user account deletion
  • head into the bed of each member of the patent mafia. Just license the technology and I'll make them an offer they can't refuse.

  • An ass backwards solution (Score:5, Insightful)

    by wbr1 ( 2538558 ) on Tuesday May 08, 2012 @05:40PM (#39935273)
    What you are proposing is simply putting a band-aid on a bullet wound.
    You have (ineffectively) treated a symptom of a broken system, and as others have pointed out, left the system ripe for abuse from the privileged still.
    The system needs to be rewritten from the ground up. Unfortunately this will never happen. The broken patent system is just one symptom of a far larger disease, and that is the continued concentration of wealth and power in corporations. That concentration is little different than the robber barons, or lords over feudal serfs abusing their position. Until the people put down their bread, and turn off their circuses, these abuses will continue.
    Spread the word, proclaim intelligently the injustice of the current system to all who can and will hear, write your congress critters, bitch and moan if you have to as well, but stand up too, and encourage all you know to stand up as well. Otherwise eventually you will have no legs to stand on, because those have been patented or outsourced too.

    • The broken patent system is just one symptom of a far larger disease, and that is the continued concentration of wealth and power in corporations.

      Agree but the continued concentration of wealth and power in corporations is just one symptom of a far larger disease, and that is the human greeds.

      Agree? But human greed is just one symptom of a far larger disease, and that is the built-in competitiveness of biological beings.

      You would likely agree with that too, but the built-in competitiveness of biological beings is just a symptom of a far larger disease, and that is shortage of resources.

      Now go fix those!

      Now, back to the broken patent system, consider

      • Re: (Score:2)

        by wbr1 ( 2538558 )

        Agree but the continued concentration of wealth and power in corporations is just one symptom of a far larger disease, and that is the human greeds.

        Agree? But human greed is just one symptom of a far larger disease, and that is the built-in competitiveness of biological beings.

        You would likely agree with that too, but the built-in competitiveness of biological beings is just a symptom of a far larger disease, and that is shortage of resources.

        Now go fix those!

        Now, back to the broken patent system, consider the flip side. If you are a little inventor, you are most likely wishing some giant corps violate your patent because then armies of commission-based lawyer will help you sue the rich guys for free and you will more likely become another rich guy from suing the large corps than productizing your patent with probably little real market value. I'm not saying that's good, but that's another side of the story.

        The shortage of resources is a bullcrap reason. In a truly global economy, we -should- be able to distribute resources to where everyone got what was needed and a share of excess not saveable for hard times. I do agree that human greed is at the root, because of our largely poor ability to judge true risk, and poor ability to make real long term plans (both intertwined). This results in the "this is mine, I'm going to get mine attitude", that drives huge parts of the problem.

  • In your world the big guys are even more free to abuse the little guy; now the big guys are instead free to infringe on the little guy's patents without compunction, because the little guy dare not sue for infringement. God knows the big guy will spend a lot to defeat your infringement claim...and now not only is your case hard to win, if you lose, you are completely screwed. Almost everything I see on slashdot about fixing the patent system would actually make it worse, particularly for the little guy peo

  • Congratulations (Score:3)

    by taustin ( 171655 ) on Tuesday May 08, 2012 @06:07PM (#39935551) Homepage Journal

    You've just made it profitable for big companies with on-staff lawyers to completely stop innovating. Instead, they can just see what other, smaller companies are doing, and copy it, patent or not. Because no small company will ever dare sue for patent infringement again.

  • The $500 billion figure has been cited a few times, including by Drew Curtis in his astonishingly poorly-informed talk about patent trolls. The event study methodology used in the Bessen et al. study has been criticized as likely to overestimate the costs attributed to patent trolls. See Glynn S. Lunney, Jr., On the Continuing Misuse of Event Studies: The Example of Bessen and Meurer, 16 J. Intell. Prop. L. 35 (2008) (responding to similar event studies done by Bessen and Meurer when they wrote their book

  • It seems to me back in 20th century there were people in positions of power that put service above self that passed RICO, and also other laws and programs which helped the little guy. And some them little guys used some of these benefits to become big guys. Now I don't think such could ever be passed, and what does exists is being torn down or when new laws passed it helps only the big guys. Though I was thinking back then the "big guys" would shoot it out with each other (i.e. mob battles with tommy guns),

  • What we need is a viral anti-patent system, designed to be stronger than the GPL with the intention of destroying the patent system together. Like OIN (the open invention network), but with real teeth. Here's how it would work:

    0. Philosophy: intellectual monopolies are completely wrong, opposed to the scientific method, economically evil, and morally unjustified. Nobody can own an idea, and everyone stands on the shoulders of giants.

    1. Create a "public patent foundation" (PPF) similar to the FSF.

    2. Anyone

  • How about: the amount one party spends in legal fees must be matched at some ratio and paid to the other party, regardless of guilt, to be itemized and balanced by the end of every month.

    For a 1:1 example:
    Joe Blow, owner of Joe's Cups of Joe of Skid Row, OK gets sued by Joe Mamma, Inc., where Joe Mamma dumps $200K every month into lawyer fees, legal research, expert witnesses, court filings, etc... and Joe only spends $5K to retain Jimmy Shyster of Shyster, Benedict, and Arnold. Joe Blow would end up havin

  • It's the COBOL conversion guy [wikipedia.org] and academic hanger-on, Vivek Wadhwa, mouthing off again. He just wants to see his name in print. [highbeam.com] It's sometimes claimed he was on the faculty at Harvard (he's not, he was just an RA) and now he has some vague affiliation with Stanford he's touting.

  • 2 big lies block patent reform. (Score:5, Informative)

    by dweller_below ( 136040 ) on Tuesday May 08, 2012 @07:45PM (#39936477)
    The patent debate has fallen victim to 2 big lies:
    • 1) Patents are good. More patents are more good.
    • 2) Patents belong to the patent holder.

    Patents are monopolies. Years ago, they were monopolies of action. Modern software and business method patents are monopolies of action, expression, and speech.

    Monopolies are expensive. They damage free markets. They always drive up the cost of goods and services. They are taxes on market places. We have forgotten that patents are monopolies. Somehow the patent lawyers have convinced us that patents are a measure of innovation. This great lie has blinded us to the fact that patents actually measure the decay and destruction of free markets.

    The second lie is actually more pernicious, since it blocks our pathway forward. Patents actually belong to society, not the patent holder. Patents are restrictions imposed on EVERYBODY BUT the patent holder. Patents are voluntarily imposed on a society, by that society, for the good of the society. If a patent was the property of the patent holder, it would be worthless, since no patent holder has the ability to enforce a patent. Only society has the ability to enforce a patent.

    Since patents belong to society, then they can (and ultimately must) be managed for the good of society.

    Once we dispel these 2 grand deceptions, the way forward is fairly clear:

    • First, we must stop the hemorrhaging. Our society can't tolerate a patent office that produces enormous numbers of crappy patents. The damage to our economy is literally in the trillions of dollars. A limited nuclear exchange on US soil would be less expensive. We must shutdown the patent office until we can figure out how to restructure it to produce limited numbers of high quality patents.
    • Second, we must produce a method to cheaply dispose all our toxic, crap patents. Litigating them would destroy us. We need a cheaper way to get rid of them. The best would be an executive order (or legislative act) disabling every patent granted (or in process) for the last 20 years.

    I suspect we can ultimately fix almost all our patent problems by returning the patent office to central funding. Funding the patent office from patent fees has got to be our greatest mistake.

    Miles

    • Re: (Score:3)

      by labnet ( 457441 )

      Some great points. Here are some more.
      - patent owners must be commercially utilizing their patent to keep it. (within 4 years of patent application)
      - software and business process should not be patentable (ie 1 click)
      - accidental infringement be not initially punishable (ie stop it, then you have the choice to stop unsing or litigate, but no backdated punitive action)
      - the bar for novelty to receive a patent be way higher than it is now.
      - patent application / renewal fees be based on number of patents held
      e

      • Re: (Score:2)

        by jeti ( 105266 )

        Your last idea is too easy to game. The companies would just "sell" the patents to shell companies, but would receive a share of everything earned through litigation. Apparently IP Ventures is already doing this and set up between 1600 and 1800 such companies.

        Source: http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack [thisamericanlife.org]

        • Re: (Score:2)

          by labnet ( 457441 )

          Your last idea is too easy to game. The companies would just "sell" the patents to shell companies, but would receive a share of everything earned through litigation. Apparently IP Ventures is already doing this and set up between 1600 and 1800 such companies.

          Source: http://www.thisamericanlife.org/radio-archives/episode/441/when-patents-attack [thisamericanlife.org]

          Which is why I said you would need rules to stop this, which could be done by grouping common major share holders, treating subsiduaries as the same entity, treating licences to the IP as common ownership in some cases. ie make model, try break it, refine model etc. until intent is satisfied.

    • Patents are not monopolies. If you patent light bulbs and then I patent halogen light bulbs, neither of us can make halogen light bulbs without the other's permission. Patents do not give you a right to do anything, they only give you the right to stop others from doing something.

  • Alternatively (Score:3)

    by Jens Egon ( 947467 ) on Tuesday May 08, 2012 @09:36PM (#39937243)

    What about allowing either of the parties in a lawsuit to claim that the other is atempting to abuse it's monetary clout to 'buy' justice.

    If the court agrees, the big player gets to pay the little guys costs along with their own. Even if they win!

  • Not a Mafia, but a Cartel (coming soon) (Score:3)

    by mutewinter ( 688449 ) on Tuesday May 08, 2012 @09:41PM (#39937291)
    Here is my take on it, and this applies very specifically to the mobile area.

    Over a period of time the patent disputes between Google, Microsoft, Apple, Samsung, and the other big players will be settled. Whether through fees or you-use-ours-we-use-yours agreements, the battles will end. Then what we will have is a true cartel through which any outside party wishing to build and sell a legal mobile device must pass through. This could either mean very big per device license fees, obstructive licensing agreements, or outright market exclusion.

    What I fear most is not the death of outside innovation in mobile but the Frankenstein chimera of a law that bought off lawmakers and lobbyists create to "reform" this problem.

  • Wrong approach (Score:4, Insightful)

    by WOOFYGOOFY ( 1334993 ) on Tuesday May 08, 2012 @09:47PM (#39937329)
    The problem is that patents should not be applied to software. Software patents are actually patents on ideas... the patent covers some high level algorithm . Algorithms are not patentable in theory, but patent lawyers and the courts are ignoring that.

    Software is already fully protected by copyright. That's enough IP to motivate people to write software and to prevent people from ripping off your code..

    There is no "problem" except the will on the part of a certain court- the Court Of Appeals for the Federal Circuit (CAFC), IP lawyers, corporations and IP maximalists to subvert the patent system to their personal benefit .

    It's really nothing more than an agreed-upon defiance of the meaning of very clear law, society's best interests and the express wishes of the vast vast vast majority of software engineers who are allegedly the "beneficiaries" of the system.

    Software patents are bad law. IP lawyers are perfectly well aware of this fact which is why they expressly exclude legal arguments and algorithms for tax avoidance from being patentable- they're not going to have done to them what they've done to us.

    Either the law will change of the inevitable consequences of the law will collapse the entire system of software creation in the US and anywhere else software patents are permitted, and by collapse I mean monopolist prices accompanied by a lack of innovation, along with a defection of creative types from the field.

    If you want to get activist about things, then refuse to sell software in the US. Set up a company in France or the EU and sell only into non-software patent jurisdictions.

    If enough of us do that, it will be game over for the lawyers since it will then be completely indisputable that software patents are in fact retarding innovation and driving creators OUT of the US- something the US could not bear the thought of since it's so contrary to our idea of our country.

  • Aside from the absurd patents, like software that need to go away completely, the fees and the total number of patents held by an organization should be linked to the number of full time, non-contract employees. The implementation would need appropriate loop holes checks, and heavy fines for trying to subvert the system.

    A huge company with many workers should be allowed an appropriately large number of patents. They should also have to pay top dollar to keep them, with the price per patent going up consi

  • Apple defends it by putting their expensive suits on it and soon racks up $100k in legal fees, so they threaten the little guy that if he doesn't drop the suit, he could lose $300k. He can't afford to lose $300k and Apple has better lawyers.

  • So if you are a lawyer, you could work for either side and always win? If you don't win the case, you can take a percentage of the damages? Off course your contract would state that you would never participate in the losses of the case. In countries where "no cure, no pay" is allowed for lawyers (which is totally insane), this only makes matters worse.

  • Concentrate on the real issue (Score:3)

    by alexo ( 9335 ) on Wednesday May 09, 2012 @10:28AM (#39941877) Journal

    The only way to have meaningful changes (be they patent reforms or anything else) is to ensure that those in the position to enact the changes have both the means and the will to do so.

    Until we reach that stage, all the ideas, suggestions and discussions amount to nothing more than intellectual masturbation.

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