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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."
FWIW, this is my personal opinion:
It would never happen. Today's purpose of patents is different from when the concept was created. The use today is to prevent a small or single owner nimble upstart from usurping the business of an incumbent elephant and potentially gutting the cash cow of it's shareholders.
The aforementioned incumbents would fight tooth and nail, with large campaign contributions and gifts, to prevent such a law from ever passing.
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No, it's not. If I'm a small business with 25k in debt to start up and another 50k in debt to finance my new patent on my new product and then Microsoft sues me for violating their patent I can either capitulate and be out a minimum of 75k as my business disappears or fight with nearly no money to finance my operation.
Microsoft, on the other hand, can pay 5M to its lawyers to crush me.
If, somehow, I win my legal fees back I get to wait through round after round of appeals, have lost months if not years of product sales due to the injunction in place on me and have, in the meantime, defaulted on all my debts, losing my business. Yeah, not quite fair.
Just thinking about this, it might feed the patent trolls and mostly hurt small to medium sized companies.
If I'm a little guy and hold a patent that, say, Apple violates. I sue Apple and they simply say they spent a few million. It's a small amount for them but if I lose, I am bankrupt. So, it doesn't help the little guy.
So, my approach would be to "sell" my patent to a company I just formed for a couple of hundred bucks onllne and that corporate entity sues the big guy. If I win, that company has some scheme to pay me back the award. If I lose, I fold the temporary company and I'm out of pocket a few hundred bucks. Pretty close to the model used by patent trolls.
So, I can't see how this might be different...
Scenario: a "little guy" gets a patent. A "big guy" violates it. The little guy takes the big guy to court, and the big guy throws an entire legal department at the little guy, and essentially buys the result. The little guy then has to pay treble damages of the expenses of that great big huge legal department, and goes out of business because of the punitive award. As part of the punitive award as the little guy goes under, the ownership of the little guy's patent then goes to the big guy.
Want a patent held by a little guy? Willfully violate it, then bleed the little guy dry with protracted court proceedings. You'll get the patent through bankruptcy. And if the little guy doesn't defend his patent... free IP!
Think it through. "Automatic" damages means you create a system that can easily be gamed by armies of lawyers far better at manipulating the system they crafted than you, and ties the hands of the judge to prevent it.
Everybody gets what the majority deserves.
Suppose if I'm a small independent inventor with a patent, and Conglom-O misappropriates my patent. I only have kilobucks to spend on a lawyer, while Conglom-O has megabucks. Predictably, their expensive lawyers beat my bargain basement representation. Now I'm on the hook for 3 times what they paid for their defense? How is that any better for me than the abolition of patents?
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It's easy to write something that works correctly for the situation you have in mind; the challenge is to make sure that it also works correctly in all the other situations that may arise in practice. Whoever suggested the law described in the summary is, I'm sure, not a good lawyer or a good software engineer,
Why not just get rid of patents altogether, or at least software and business method patents?
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for the little guy who invented something, say a more efficient engine, to sue the huge corporation that just copies their invention.
Since if he loses he gets hit with 3x the costs of the defendant's super expensive lawyers if he happens to get an idiot jury or made some technical error somewhere.
I have a simpler solution - only grant patents for things that are actually inventions. "A button which when clicked buys the product for the user using the credit card they entered previously and the shipping address they entered previously" is not an invention, for eample.
What you are proposing is simply putting a band-aid on a bullet wound.
You have (ineffectively) treated a symptom of a broken system, and as others have pointed out, left the system ripe for abuse from the privileged still.
The system needs to be rewritten from the ground up. Unfortunately this will never happen. The broken patent system is just one symptom of a far larger disease, and that is the continued concentration of wealth and power in corporations. That concentration is little different than the robber barons, or lords over feudal serfs abusing their position. Until the people put down their bread, and turn off their circuses, these abuses will continue.
Spread the word, proclaim intelligently the injustice of the current system to all who can and will hear, write your congress critters, bitch and moan if you have to as well, but stand up too, and encourage all you know to stand up as well. Otherwise eventually you will have no legs to stand on, because those have been patented or outsourced too.
Silence is a state of mime.
Its worse. Microsoft steals your work, you sue them, they spend 1M to crush you, and under Submitter's plan you would pay treble damages.
No, the only plan I can come up with is to sell your patent to a troll with cash reserves in exchange for something like 10% of their winnings if they successfully sue MS. Lunacy like that is where we are headed, the blood sucking lawyers will make sure of it.
Something far more basic would work. Ban software patents.
Okay, not every tech lawsuit is about software. Or even about patents. But it would do a lot to reduce these risks and it's an easy change.
P.S. Treble damages is a real legal term, believe it or not. Because "triple" would sound too ordinary?
I believe TFA is saying that only the plaintiff, NOT the defendant, would face this liability
Okay, lets say you (an individual or small company) sue Microsoft for stealing your patent. What will then happen is that Microsoft ties you up in court long enough to force you to drop the suit (or they just win outright), and then *you* might find yourself on the hook for triple damages when they counter-sue to recover their costs. It's still the same basic tort reform idea that has been proposed for years, and won't work for the same reason. It doesn't address the fundamental problem that in the U.S., you often get as much justice as you can afford and no more, regardless of which table you sit at in the courtroom.
Please stand clear of the doors, por favor mantenganse alejado de las puertas
I'd go further than just software patents. Ban all method patents. That includes business methods, which is in just as bad a shape as software patents are.
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Fees are waived for the first 50 patents owned
ACME Corp creates ACME Subsidiary #000001 through ACME Subsidiary #999999 and sells 50 patents to each Subsidiary for $1.
It's admirable that you're protecting small-business, but it's a lawyer's job to exploit loopholes like this.
This is absolutely correct for process patents. This is a requirements of the 1994 TRIPs (Trade-Related Aspects of Intellectual Property Rights) treaty. Here is the text of Article 34:
Whether this applies to software patents I am not sure (IANAL). As business process patents, it may, though it's not clear to me what the "product" would be. In any case, this is clearly the direction in which the law has been moving.
Ironically, by the way, negotiation that resulted in TRIPs was initiated by developing countries who found their economic development was being retarded by patents held by developed countries. Once the process started, however, it was hijacked by an unholy alliance of the pharmaceutical and entertainment industries. Poor countries were then effectively forced to join by developed countries, who withdrew from GATT leaving a choice between losing access to western markets and enacting onerous patent and copyright laws. Because of the impact on the cost of drugs for poor people, patents are a life-and-death issue. IP regulations, meanwhile, are expensive to implement, particularly in countries that lack the legal expertise:
Software is already fully protected by copyright. That's enough IP to motivate people to write software and to prevent people from ripping off your code..
There is no "problem" except the will on the part of a certain court- the Court Of Appeals for the Federal Circuit (CAFC), IP lawyers, corporations and IP maximalists to subvert the patent system to their personal benefit .
It's really nothing more than an agreed-upon defiance of the meaning of very clear law, society's best interests and the express wishes of the vast vast vast majority of software engineers who are allegedly the "beneficiaries" of the system.
Software patents are bad law. IP lawyers are perfectly well aware of this fact which is why they expressly exclude legal arguments and algorithms for tax avoidance from being patentable- they're not going to have done to them what they've done to us.
Either the law will change of the inevitable consequences of the law will collapse the entire system of software creation in the US and anywhere else software patents are permitted, and by collapse I mean monopolist prices accompanied by a lack of innovation, along with a defection of creative types from the field.
If you want to get activist about things, then refuse to sell software in the US. Set up a company in France or the EU and sell only into non-software patent jurisdictions.
If enough of us do that, it will be game over for the lawyers since it will then be completely indisputable that software patents are in fact retarding innovation and driving creators OUT of the US- something the US could not bear the thought of since it's so contrary to our idea of our country.
No, the only plan I can come up with is to sell your patent to a troll
How about just getting rid of software patents? No lawyers, no courts, can't stop innovative startups etc. Large corporations work around the patents to implement the same functionality in any case (or just ignore them if they think they can out spend and crush you). Since they fail so spectacularly in their stated aims unless we feel a need to provide jobs for lawyers it's clear they should simply not exist.