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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?"
I shall ready the trebuchet!
I'm trying to teach myself to set people on fire with my mind... Is it hot in here?
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?
All that needs to happen is to make it so people can't SPECIFICALLY claim property just for the sake of passive income. Reform the laws so that people can't cash in on something they did not contribute to, no more random lawsuits aimed at people who did all their own work to bring things into existence.
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.
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?
Question: Why can't we prohibit a cause of action for patent infringement where there is no net gain to society? ...
Answer: Because who is going to decide what constitutes a net gain for society? The government (Big Brother sends his regard)? A board of community leaders (who will be on the payroll of the big corporations in no time)? Judges (the same ones who make a mess of patent claims now)? That way madness lies
What next? Stoning girls because they weren't virgins on their wedding?
This would cut down on teen pregnancy, abortion, children growing up in broken families, STDs, and so much more.
Modern science allows us to hunt down most of the guys too, so we don't have to be sexist. We can now get DNA just from a touch, and we can track tiny mutations in the microbes that people normally carry. Even a virus like HIV has mutations that can help lead back to the guilty party.
We can build a database with everybody's DNA signature in it, and soon we'll be able to do full sequences including microbes. We could use GPS tracking on everybody so that we can reduce the search space. We could even have chastity belts with tamper alarms, for both male and female (they can alert on proximity).
For the stoning itself, I think we should televize it live. We can auction off the right to throw the first stones, and we can sell tickets to throw the rest of the stones.
Go on then, write that law for us to see.
There are places where the networks are not touching,and there are places where they are-Boeing's Lori Gunter
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).
Luke, help me take this mask off
Barratry is alive and well, in both federal and many state judicial systems:
http://www.abajournal.com/news/article/lawyer_awaits_verdict_in_barratry_trial_over_subpoena_sent_to_opposing_part/
http://www.lukegilman.com/blawg/2009/11/07/houston-lawyer-charged-with-barratry-for-having-homeless-man-hand-out-business-cards/
http://www.citmedialaw.org/threats/state-oklahoma-miller-v-king
In the case of "the offense of persistently instigating lawsuits, typically groundless ones",
just making the accusation is often enough to make the attorney quit a case. They can be tried for it in court as well as being censured or disbarred, whereas the client can only be tried (often not understanding what it is and/or thinking their case's validity precludes such a charge). It may have been used successfully at least once in a context in which it is often discussed: "In Religious Technology Center v. Gerbode, 1994 WL 228607 (C.D. Cal. 1994), a Rule 11 sanction of $8,887.50 was imposed against Helena K. Kobrin, an attorney for the Church for bringing legally baseless, frivolous claims", however corroboration for this is lacking.
"I may be synthetic, but I'm not stupid." -- Bishop 341-B
The article was written in a very superficial way. The author avoids going into detail on how her proposed solution would be implemented and why it would not have negative side effects. I suspect she has not actually thought very deeply about the problem or her solution.
But do patents have to be freely assignable?
Patents are personal property--and thus freely assignable--by statute. 35 U.S.C. 261. Assignability is also guaranteed by Article 28 of the TRIPS Agreement, which is a treaty that the US is party to. So changing the assignability of patents would require amending the law and withdrawing from or amending a very important international treaty.
And even if it were changed, it would mean that hundreds of patent holding companies would suddenly lose their patent rights because of an action by the government. Other patent holders would lose their right to freely assign their patents. That's called a taking, and the ex-patent holders and patent holders whose patents lost value because of the restriction would be able to sue the government for the value of the patents. It would be a massive litigation and cost the tax payer an enormous amount of money.
But anyway, how does she suggest we restrict the assignability of patents? We could require that they only be assigned to an entity that intended to practice the invention. Sounds great, right? No more patent holding companies, therefore no more trolls. There are at least five big problems with that:
1. Not all patents can be freely practiced because of other patents surrounding the technology. Imagine I own a startup company. If I invent a new transistor design I can't be expected to practice it myself: other companies have patents on things like manufacturing processes, bus designs, chip packaging, etc. I would have to license dozens of other patents in order to sell chips with my new transistor design. But that's backwards. Instead, I should license my one patent to companies like Intel and AMD and let them do the manufacturing and sales. But a requirement to practice means I couldn't do that; I'd have to practice it myself.
2. And what about pure research institutions like universities? They can't be expected to also become manufacturers.
3. But suppose we say it's worth making universities sell their patents. Well, now since they have to sell the patent only a single entity will get the rights. It can no longer stay with the university and be licensed to whoever will pay the fee. The end result is less competition in the market place for the finished product.
4. Okay, suppose we say that it's sufficient that the patent owner license the patent to at least one entity that is going to practice it. But then the law is too narrow. Almost no patent trolls actually rely on litigation damages for income; it's too uncertain and the margins are too narrow and often negative. Litigation is just a tool to extract a licensing fee. So the end result is that the trolls can point to a manufacturer who licenses the patent and nothing changes.
5. What about patents on technologies that are ahead of their time? For example, suppose I invented an amazing new transistor design. It will make computers much faster but it requires X-ray lithography in order to work. Well, X-ray lithography is not cost-effective yet, so I can't really practice my invention. Does my patent just evaporate? How does that spur innovation?
So the author has carefully avoided actually explaining how her solution would be implemented and how it would be narrow enough not to have side effects yet broad enough to be effective yet not invite more litigation or government regulation.
Trademark law dealt with a similar problem, a worry about trafficking in intent-to-use trademark applications, and solved it by forbidding the assignment of them "e