Champerty and Other Common Law We Could Use Today

pevans writes "Over on Red Hat's Opensource.com I found this neat summary of a few old laws that could really help us today with the patent trolls. The article 'What's wrong with champerty?' is brief, but full of legal goodness that seems to have fallen by the wayside: 'Let's bring back barratry, maintenance, and champerty for patent lawsuits. Combine that with a limitation on the assignment of patents and a lot of patent trolls would be out of business. ...do patents have to be freely assignable? And why can't we prohibit a cause of action for patent infringement where there is no net gain to society?"

Comments

No, no, no.

[Jurily]

What you need is to make sane fucking laws, not apply laws from before the wheel to the age of the internet. That's what got us in this mess in the first place.

What next? Stoning girls because they weren't virgins on their wedding?

Re:No, no, no.

[hey!]

You voice my objections to the article better than I could.

That said, what we are talking about is a phenomenon where the abolition of one class of legal abuse tends to lead to another, new class of abuse. As long as there is law and there are people with money interested in subverting the law for their own purposes, you'll have new abuses dreamed up by creative and unscrupulous lawyers.

So this is not a matter of getting the law right, but keeping up with the development of novel abuses.

We needn't resurrect the doctrine of champetry wholesale as it existed a century ago to address the most flagrantly abusive forms of maintenance. The problem with champetry is that it assumes that because contingency fees create an incentive to maintain frivolous lawsuits, that any lawsuit undertaken by a lawyer with a contingency fee is necessarily frivolous. That's only true if we assume that substantive lawsuits are brought exclusively by gentleman of means.

The real problem is not the fee arrangements, but the use of law to obtain plaintiffs privileges beyond what the law grants them. It is the use of the law to undermine the rational basis of the law.

So the point the article makes is better than it appears. Patent trolls use the law to redress injuries that would not exist were it not possible to obtain "relief" through the courts. This is not the case for patent holders who produce actual products using the patents, because infringers take money away from the patent holder's business. Patent trolls have no revenue or prospect of revenue save what they can obtain through lawsuits. Therefore the "injury" they suffer by infringement is a legal fiction.

The patent system exists for aiding innovation

[Anonymous Coward]

The patent system is for one thing only. To aid innovation.

If the patent system doesn't aid innovation it fails its own raison d'être.
If a part of the patent system doesn't aid innovation that part fails and should be removed.

Re:The patent system exists for aiding innovation

[delinear]

In this case the innovation involves a lot of waste effort circumventing overly restrictive legal practice when it could instead be innovation which benefits everyone directly.

Re:The patent system exists for aiding innovation

[edittard]

The resources you spend on unnecessary innovation - working round the patent - could be spent on useful innovation - creating something new or better.

Lets not pussyfoot around

[Anonymous Coward]

Patents and copyrights are both immoral protection rackets designed to hide information and make the rich richer. They stall human progress rather than help it. They will inevitably be removed. The only question is: How long will we wait?

The Problem Discussed Lies With The USPTO

[cmholm]

mr_matticus closed by saying: But there is no way you can say with a straight face that on balance, these systems have not been wildly successful at encouraging investment in R&D, proliferation of art, and consumer access. At no other time in human history has so much been available to so many. Whining about the tiny fraction of extremely popular works that can afford to be highly selective about transactional terms is no way to suggest such an argument.

I'll agree that the parent post may have been going a bit over the top. So, I'll attempt to focus on some specific issues:

1) Getting a Patent: There's evidence that the USPTO isn't doing its job at examining patent applications. There are a slew of Federal regulatory services that have been suffering for years from inadequate staffing, the USPTO being one. This seems to be manifesting itself in the examiners not having time to spot a lot of obvious or non-original work. Hence, the icon for many of the /. patent-related stories.

2) Holding Patents: The original intent of the framers when setting up patent law was that inventors enjoy a limited window of time to enjoy the fruits of their inventions via a monopoly granted by the state. IANAL, but baring someone pointing out long established case law to the contrary, I'd bet money that the framers didn't foresee and would have legislated against "patent trolls".

Pray tell, what does it gain society to permit a business whose sole purpose is to quietly sit on patents in the hope that they don't turn up during a patent search, waiting to jump on the next goat who makes an actual product that might conceivably infringe? This business method is aided and abetted by 1).