Ludicrous as a Balm for Patent Idiocy
Pamela Jones's GrokLaw website has kindly noticed my suggestion to make ludicrous patents a form of fraud. She raises a few questions that overlap
with some from other folks, so I thought I'd clarify my thinking. What the heck -- I've not nothing else to do on Thanksgiving.
One phrase I am known for repeating is "You're thinking too hard." I use it to mean that someone is looking for a complicated, subtle meaning instead of a simple one. Often it seems that if you pretend the solution is simple, it becomes so.
So I have to say to PJ: "You're thinking too hard." Here are her concerns (quoted from her blog):
- You'd have to define a clear line in the sand, a definition of obviousness that couldn't be stepped beyond unless it was on purpose, and I don't see how you could. Maybe you do. But no law can be so vague that it's impossible to know precisely when you are breaking it. How could you define clearly enough where that line is?
- Who do you punish?
The first is actually (to me) quite simple. The relevant standards for a patent are (a) that it must be not obvious "to one normally skilled in the art", and (b) not already be public knowledge. The phrase "normally skilled in the art" has well-defined meaning in patent law, sufficient to under-pin the whole structure. So let's just reuse that: A patent is "ludicrous" if it is "trivial to one normally skilled in the art." Note the range opened up between "obvious" and "trivial". On a scale from 1 (stupid) to 10 (Einstein), we could say that an idea is "obvious" if is a 6, and so any patent should be a 7 or above. Whether an idea is a 5 or 6 or 7 is something reasonably people could argue about, and so is not fraud to disagree. But at some point -- let's call it 3 -- it's just plain trivial.
This is the level of precision of most legal standards. These words are then interpreted by judges to apply to particular instances, which nails it down harder and harder. But the word "trivial" (or the phrase "trivially obvious") fits into the structure quite nicely.
As for prior art, I would say a patent is "ludicrous" if it steps on prior art "widely known to those normally skilled in the art." In our current poster child, I would say that finding folks who have heard of "not equal" operators for comparing objects, pointers, or references would be pretty damn easy. It's probably hard to find normally skilled folks who haven't.
Liability is even easier. Those who are in a position to profit from the fraud are liable. Typically this is the patent's actual owner, who may or may not be an inventor. In our particular poster child, this would be MicroSoft. I use the phrase "actual owner" because people who are clever should not escape their responsibility by hiding the patent in a shell company or something. Like with any other fraud, you cannot escape liability easily. If you buy a patent, you buy the risk. So don't buy a patent that is likely to be ludicrous.
Others have worried about the new lawsuits involved. First, remember that if you file a claim on a ludicrous patent, you only get paid if you win. This is real incentive to avoid that. And there are protections in the legal system against frivolous suits, which would equally apply here. Remember, the idea is to leverage the existing systems to address the problem, not invent an entirely new system. Standard safeguards and rules apply. We're just defining a new form of fraud, based on existing standards for fraud and patents. Once we've set up the language reasonably, most things should just follow naturally.
I don't declare for or against software patents here. We can leave that for some other time. But politics is the art of the possible, and I think that this suggestion actually is slightly near possible. And I think it would make a difference. And, like PJ, I like the idea of someone getting legally smacked for being "ludicrous". That alone would be worth it.