Ken Arnold's Blog

Self-enforcing Patent Sanity

There are many suggestions for fixing the patent system, from abolishing it to radical surgery. Many of these are praiseworthy in design, but most suffer from a severe problem -- You can't get there from here. Wonderful end results are nearly impossible to attain because the forces defending the status quo are powerful and have little stake in the resulting system.

So here's an idea that actually gives some major players a strong stake in the outcome and could have a big impact: Declare that ludicrously obviously invalid patents are a form of fraud. And enforce that by giving anyone who proves patent fraud by ludicrosity gets paid triple their costs as a reward, plus any damages they can show were caused by the issuance of the patent.

As a starting point, I would define a "ludicrous" patent as one that any practitioner normally skilled in the art would recognize as having prior art. MicroSoft's is our most recent poster child, who seems to be seeking a patent on an IsNot operator that checks if two pointers point to the same place in memory. In other words, it's like C's "p1 != p2" where p1 and p2 are pointers. Uh, hello? Can we say prior art, like almost any machine instruction set? And can we say "obvious" as in "done in almost any language you can name that has pointers or references"?

I model this on "whistle-blower" laws that encourage private citizens to ferret out fraud against the government by giving successful ferreters a chunk of the recovered money. This means that the gov't itself doesn't have to do anything to ensure that a bunch of investigators are always looking for fraud against it. If someone has a good case, the perps pay the investigator. And it also keeps the number of frivolous fraud suits down, because a frivolous fraud suit gets you nothing.

Here we create a herd of patent lawyers who will invest their own money knocking down patents that are ludicrous and collecting bucks. Sometimes they'll get a nice payment from a simple letter that shows the holder that they will lose the case. Sometimes they will win big bucks when someone defends one of them.

It also creates a liability for filing ludicrous patents, which (beyond filing costs) there is none now. It helps protect every major player who isn't using patents as offensive weapons. And another set of major players -- the patent lawyers -- have new ways to make money.

To be fair to those holding patents the predate this rule, I would give holders one year to voluntarily void any patents they hold, but after that, all unexpired patents would be fair game.

So what so you? How about we pay the lawyers to sue the lawyers to keep the pool cleaner?

Comments

• I love it! That's the best answer I've heard so far, because I agree with you, there's no way the entrenched Big Players are going to let some "whiny minority" come in and fix their cash cow. It will have to be fixed externally first.
  

  Posted by: ccerberus on November 22, 2004 at 07:05 PM

• Interesting idea Ken,

  IANAL: but it would seem to me it needs one additional protection however; the penalties must also be awarded to successful defendants. This is to remove the unintended incentive for large companies to attack small compaines with patent fraud action; due to their typical financial inability to defend themselves. Law firms could defend the little guys, purely on consignment, when the patents involved are actually valid.

  Posted by: cajo on November 23, 2004 at 08:07 AM

• Well, I won't say "Jippy more money for the lawers" and point to the bad economy here..

  I'll play devils advocate instead;

  *Since the patent office already granted the patent this means by law that the patent is valid. With that info, what you do call a 'ludicrous'
  patent?
  *Keeping in mind that currently the patent system is a buy-ones-sell-infinitely (for quite some years anyway). How do you think this proposal will not be shot down just as fast as any other proposal. It still hurts the big companies.
  *We all agree software patents are a bad thing. More so if they are not used for producing your product, but to prevents others from doing so. The laymakers apparently don't see it that way (in Europe this may turn out differently!) Will shutting down ludicrous patents not make the work of activists who are trying to convince the lawmakers almost impossible?
  

  Posted by: zander on November 23, 2004 at 09:33 AM

• "This is to remove the unintended incentive for large companies to attack small compaines with patent fraud action"

  no. Under the system the reward would be granted automatically to the party filing the complaint to the PTO.
  The PTO would then go to the party whose patent was revoked for reimbursement.

  Therefore noone would sue anyone as all actions would be through the PTO (or an oversight agency set up for the task as an intermediary).

  Noone would blackmail anyone with threats of lawsuits as there would be no consequences and no cost to the patent holder in case the patent is not thrown out.
  If a patent IS thrown out the payment amount would be a fixed amount (so no $100 million in lawyers' fees...) plus an amount of damages determined by an independent 3rd party (so no ludicrous claims of billions of dollars worth of damages).

  Will need some safeguards but it could work.

  Posted by: jwenting on November 24, 2004 at 04:53 AM

• > Noone would blackmail anyone with threats of lawsuits as there would be no consequences and no cost to the patent holder in case the patent is not thrown out.

  Whom are you then proposing reimburse the defandant the potentially ruinous legal fees incurred in the defense of a valid patent? The PTO?

  Posted by: cajo on November 24, 2004 at 05:19 AM

• There are already rules that allow recovery for frivolous lawsuits. I presume they would work here as well as anywhere. Again, think of the whistle-blower laws. They let folks who (claim to) know of fraud on government contracts to file suit and, if succesful, get a percentage of the award. They bear all the costs, so if it isn't successful they are out a lot of cash. And they are subject to the normal counter-suits for frivilous or harrassing lawsuits. I think that same protection would work here.

  The model here is that anyone who knows or should have known that a patent was clearly improper, and yet nonetheless manages to convince the PTO to issue a patent, has committed fraud. There is a lot of settled law on the subject of how fraud is handled, and how defendants are protected from wrongful claims of fraud.

  Posted by: arnold on November 24, 2004 at 09:47 AM

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