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Self-enforcing Patent Sanity

Posted by arnold on November 22, 2004 at 6:44 PM PST

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?

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