The Patent Mafia and What You Can Do To Break It Up

colinneagle sends this quote from an article about the ever-growing patent racket in the tech industry: "The lawsuits are raging all across the tech world. Oracle sues Google, Yahoo sues Facebook, they counter-sue. Others threaten, others buy more patents and the circle goes round and round. Don't be fooled by the lawsuits between these tech titans though. The real cost that the patent mafia extracts from the tech world is on the smaller companies who can't afford to battle the Apples and Microsofts of the world. Their choices are far simpler. They can abandon their innovations or they can choose to pay and allow the Mafiosos to wet their beaks. Also, don't be fooled about who the real losers are here. The the real losers are you and me. ... So what do do? Here is my opinion. I would make it just as expensive for the offensive patent prosecutors. Just as the government put in the RICO act to combat organized crime, I would put a similar law in place on patents. RICO calls for treble damages. I would have treble awards of costs and legal fees. If a patent holder sues another entity for patent violation and that suit fails, the plaintiff who brought the suit should pay treble damages to the defendant. Three times what the defendant paid to defend."

Comments

Re:Damages

[crafty.munchkin]

Which is what happens in Australia - to stop frivolous lawsuits. A very recent example - AFACT vs iiNet, costs were awarded to iiNet meaning the MAFIAA had to pay their (multimillion dollar) legal bill.

Re:What happened to innocent ?

[Grond]

The patent system works the other way around it is up to the defendant to prove that they have not violated a patent. Guilty until proven innocent.

That's not accurate. Patents are presumed valid by statute, but they aren't presumed infringed. The plaintiff still has to make out a prima facie case of patent infringement, which the defendant can then rebut or defend against in some other way (e.g. by showing that the patent is invalid or unenforceable).

2 big lies block patent reform.

[dweller_below]

The patent debate has fallen victim to 2 big lies:

• 1) Patents are good. More patents are more good.
• 2) Patents belong to the patent holder.

Patents are monopolies. Years ago, they were monopolies of action. Modern software and business method patents are monopolies of action, expression, and speech.

Monopolies are expensive. They damage free markets. They always drive up the cost of goods and services. They are taxes on market places. We have forgotten that patents are monopolies. Somehow the patent lawyers have convinced us that patents are a measure of innovation. This great lie has blinded us to the fact that patents actually measure the decay and destruction of free markets.

The second lie is actually more pernicious, since it blocks our pathway forward. Patents actually belong to society, not the patent holder. Patents are restrictions imposed on EVERYBODY BUT the patent holder. Patents are voluntarily imposed on a society, by that society, for the good of the society. If a patent was the property of the patent holder, it would be worthless, since no patent holder has the ability to enforce a patent. Only society has the ability to enforce a patent.

Since patents belong to society, then they can (and ultimately must) be managed for the good of society.

Once we dispel these 2 grand deceptions, the way forward is fairly clear:

• First, we must stop the hemorrhaging. Our society can't tolerate a patent office that produces enormous numbers of crappy patents. The damage to our economy is literally in the trillions of dollars. A limited nuclear exchange on US soil would be less expensive. We must shutdown the patent office until we can figure out how to restructure it to produce limited numbers of high quality patents.
• Second, we must produce a method to cheaply dispose all our toxic, crap patents. Litigating them would destroy us. We need a cheaper way to get rid of them. The best would be an executive order (or legislative act) disabling every patent granted (or in process) for the last 20 years.

I suspect we can ultimately fix almost all our patent problems by returning the patent office to central funding. Funding the patent office from patent fees has got to be our greatest mistake.

Miles

Re:What happened to innocent ?

[N7DR]

Another problem that nobody seem to notice is that the patent system is the wrong way arround. In normal criminal cases it is up to the prosecution to prove that the defendant perpetrated a crime. Inocent until proven guilty.

The patent system works the other way around it is up to the defendant to prove that they have not violated a patent. Guilty until proven innocent.

That is simply incorrect. The plaintiff has to convince the jury that every limitation in the claim(s) in question is infringed by the defendant. In a typical claim this means that perhaps half a dozen requirements must be shown to be met, and the burden of proof is on the plaintiff to show that every one of those limitations is met. The standard by which the jury decides the case is the "preponderance of the evidence".

And each individual limitation will typically have several debatable words in it, so the plaintiff also has to convince the judge and/or the jury that those words mean what they say they mean (usually, but not always, that is decided by a judge).

If the plaintiff fails to make a convincing case at any point in this sequence, then the patent is not infringed.

(Invalidity is another matter entirely. It's a different standard -- clear and convincing evidence -- and so it's less common for a patent is judged invalid, although it certainly does happen.)

Re:Nice idea... Won't happen.

[rufty_tufty]

I find it interesting - given you mention the history of patents - that one of the first outcomes of a rigorous patent system was to break up the guilds. Knowledge that had been held secret for centuries was suddenly in the public domain. Give it twenty years or so and everyone could use the secrets of the guild.
Now you have the reverse situation where patents are protecting the technology guilds - but at least what they are doing is not secret, and never will be. is that perhaps enough, patents have now become a system to turn trade secrets into public knowledge and they still do that job well. Is that enough and maybe we now need to invent a new system to break up the new guilds?

I do wonder if the simplest fix to the system is to say that a company cannot own a patent, only a person.
A company can license a patent from a person, but that is the limit.
Now you'd have to also have some law that prevented the company from putting into the employment contract a set of default license terms that screwed the person over.
I think you'd also want to limit the number of patents any one person can hold - that would get rid of the frivolous patents if you could only hold 100 patents over the course of your life you really would only submit the really good ones. Again that would be open to abuse when I claim by 12 year old child has 50 patents to his name, but you get the idea...