My Brush With a Patent Troll (opens in new tab)

"Patents are usually discussed in the context of someone "stealing" an idea from the long suffering lone inventor that devoted his life to creating this one brilliant idea, blah blah blah. But in the majority of cases in software, patents affect independent invention. Get a dozen sharp programmers together, give them all a hard problem to work on, and a bunch of them will come up with solutions that would probably be patentable, and be similar enough that the first programmer to file the patent could sue the others for patent infringement. Why should society reward that?"

Carmack put his finger on precisely what bothers me as a programmer about software patents.

Don’t get caught. ;-)

But seriously, there only seems to be one answer that is likely to work in practice: change the risk/reward structure so that patent trolling isn’t profitable any more.

One obvious approach would be making fewer things subject to patent protection in the first place. You could explicitly exclude whole categories like software or business method parents, assuming you could define them clearly enough. You could raise the general bar for granting/defending patents in terms of originality and non-obviousness. You could leave the standards the same in principle but apply more robust checking for prior art and/or a more thorough consultation to determine obviousness before awarding a patent. Each of these has costs in different places: principally, the legislature, the courts, and the patent office, respectively.

Another approach would be to look at the types and magnitudes of consequences that result if you lose a patent case, either by being found to infringe someone else’s patent or by claiming that someone infringes your patent and failing to win the case. For example, what if the remedies available to someone who owned a patent but who was not actively working to exploit that patent in some reasonable way themselves were made dramatically less than the remedies available to someone who was using the patent system “properly” to secure exclusive rights while they worked hard to exploit a real invention? What if there were a meaningful cost to bringing a patent case and losing not just because the court invalidated your original patent but also because the court actively determined that the original patent had been [some legal specification of “obviously abusing the system”], a kind of patent case analogy for dismissing with prejudice?

Good luck with that.

The only way to stop this troll problem is to stop these patents from being issued. Nip it in the bud. There will always be someone willing to pay for an exclusive license to the patent (i.e. buy junk patents) with the sole intent of using it to sue startups. Sad but true.

Even if the junk patent was filed for and obtained by a person who was intending to build a product or see that products get built using the technology, what we all know can happen is the product never gets developed, the patent is never practiced, and it gets sold or traded for something or acquired through bankruptcy or some other means. And... eventually... it can wind up in the hands of a troll.

Having these junk patents "floating around out there" (or maybe we should say lurking in the depths, like dormant but functional submarines ready to take out any ships who have set off on a journey to build products and made it far enough... it puts every startup at risk.

The essence of a patent is a government-granted right to sue. That is really all it is for the grantee. Nothing more and nothing less. The often cited language from the US Constituion only relates to the creation of a patent office and the purpose behind it, not what the patent office grants you. The USPTO does not give you a free ticket to a monopoly (modern US patents are not "letters patent") nor does it even ensure a successful business. You have to accomplish that on your own. Being able to sue infringers or having rights to sue as a bargaining chip in negotiation _might_ help. But it won't ensure your success. (Unless your "business" is pure patent trolling.)

Ideally (as the Constitution suggests) the patent is intended to spur innovation and (we would assume) protect a growing business of sharing those innovations (e.g. as products) with others, but that doesn't always happen. Businesses fail for a variety of reasons. But a patent, no matter how poor in quality, remains a right to sue, as long as the maintenance fees are paid. Thus even a long forgotten junk patent with no associated product or innovations is still a "live" right to sue, a potential threat, laying dormant until a. the owner gets bitter enough to adopt an extortionist mindset (e.g. look at what the co-founder of Microsoft, one of the wealthiest men in the world tried a number of years ago- no one is immune from this mindset) or b. the patent falls into the hands of a natural born extortionist, e.g. someone who actively looks to buy junk patents in order to sue people for a windfall. The patent troll.

Make a condition of patent defence to actually have brought to market a product that uses the patent. Licensing the technology to someone would also be a valid defence, but it should be within a reasonable timeframe. Patent protection could then be limited to the actual use made of the technology, overly wide patents would be more clearly identifiable, and the patent could be legally reduced in scope without losing all cover.

However there's a right to a jury trial. So I propose the following.

Juries for patent trials should be paid dramatically more (in the neighbourhood of what lawyers get) and selected from a list of volunteers according to criteria that the two sides argue over.

The idea being that we want competent people to fight to get on juries rather than come up with an excuse not too.