I've never heard a good argument against this so I'll say it here: Require that the plaintiff in this cases show demonstrable, actual, and quantifiable loss by the activity of the defendant. It seems like such a no-brainer that a business suing for damage to it's business prospects after someone stole their idea would have to actually show how it was damaged. Even allowing very flimsy evidence would do a lot to dissuade most trolls, because as every article points out, they don't make anything. And if they don't make or sell a product, then patent or not, they haven't lost anything or been damaged in any way.
Let's say I invent something really useful but also very difficult for an individual to take advantage of, like a new kind of airplane nosecone that shaves 10% off fuel costs for very large airplanes. Now, I'm not in the airplane business, and getting into it would take many, many millions of dollars. Probably the only way for me to make money on this would be to go to Boeing or some similar company and license my patent to them. Boom, I get my millions and everybody's happy.
If I were required to show actual loss, Boeing would see my new patent, just implement it without even bothering to talk to me, and when I tried to sue them, they'd say "you don't make anything, you have no losses," and they'd be right.
You could still sell your patent to an actual airline, and it could then use that patent exclusively and prevent airlines from doing so. In a sufficiently competitive market that might be enough. Boeing might buy your patent to prevent Airbus from using that tech and therefore gaining an advantage. Or if Boeing ignores your patent and just builds that tech anyway then they would expose themselves to future liability if Airbus later buys your patent.
Or you could sell the patent to an existing supplier of airline parts (and I'm sure there are plenty) which can then commercialize it. Or as a last resort if none of the existing players are interested in buying your patent, you could raise funding and open up a shop that manufacturers and sells nosecones, and then sue everyone for lost sales.
Ultimately I think it's much more useful to protect entities that actually make products and give them incentives to bring innovative products to market than it is to protect entities that simply want to invent things and extract fees from others. To me it would be a perfectly acceptable compromise.
Why would an actual airline buy your patent? Presumably you have to show it to them first for them to agree that it works and is valuable. At that point you've already handed over the valuable portion of the idea.
>Ultimately I think it's much more useful to protect entities that actually make products
I've said this before but it keeps ringing true. Entrepreneurial types in software are against patents because its not what they're good at. There's never any more substance behind the opposition than that.
Good point. This is why legal issues are complicated. :(
But the counter is that if you're offering the technology for sale, then lack of sales is an actual loss. The thieves could have paid your price, but instead chose to steal it.
The law of remedies is very broad and most of it has roots in Equity, which gives judges broad discretion to make orders against litigants who fail to "come with clean hands".
I am not a lawyer, of course, but I dropped out of law school late enough to realise that you should always consult one before forming opinions about what is and isn't legally plausible.
I feel like this could be easily covered by an NDA though, and documenting the visit to Boeing. Plus, this is a physical product, I'm speaking more in terms of software patents where the friction to use is much, much lower. Perhaps my idea wouldn't work for general patents, but that's also not what I believe is horribly broken at the moment.
Patents are not about damages. A patent is a limited-time monopoly to an idea that you can then extract value from. Inventing something, patenting it, and then licensing it out is exactly the business model patents are supposed to enable. Companies that don't make anything are perfectly valid under this model. The real solution is to either make sure prior art and non-obviousness requirements are properly enforced or just dismantle the whole thing as unworkable.
>The real solution is to either make sure prior art and non-obviousness requirements are properly enforced or just dismantle the whole thing as unworkable.
Obviousness is the key issue for me. I suspect most people, even those who work in the technology fields, are not aware that it is considered essentially impossible to prove obviousness (source: I have worked as a consultant on several patent litigation cases). So you have the ridiculous situation that almost everyone in the relevant field believes that almost all patents granted are obvious, but almost no litigation succeeds in finding that same conclusion.
This has always bothered me. The standard is supposed to be "non-obvious to an expert in the field" and yet they hand out patents like candy for things that are obvious to the most casual observer.
My solution is to cap the number of patents granted every year to, say, 1000. Patents would be ranked from least to most obvious and actual prior art investigation would take place (because the number is manageable). The ones below the cap would be unpatentable.
As I said in response to a comment upthread, the existence of an implementation by someone who had no knowledge of the patent should be prima facie evidence that the idea is obvious to an expert in the field. That should get the patent invalidated.
The problem there is that you're trying to prove a negative, which is probably even harder than proving a patent is obvious.
Say Johnny Evilguy digs up your widget from the USPTO database from a Tor connection and then re-implements it. Poof, your patent is dead, and you can't prove he read it.
Karunamon is right - it would be virtually impossible to prove the second implementer never looked at the patent database.
Beyond that, over time things that were novel are no longer novel as the direction of technical development changes, so the timing would be important as well.
Perhaps we need to establish some sort of obvious-evidence protocol? Some kind of common sense argument that can be presented in the court of law and weighed against other evidence?
Example: Someone steals an apple to feed their hungry child. Yes, it's a crime, but sending the parent to prison isn't a solution; the child is still hungry, and now both of them will to varying extents have to be cared for by the state, all over a 59 cent Apple.
The easiest way to prove obviousness is to find printed publications that describe the claimed invention. For obviousness, multiple printed publications can be combined as long as they are in a related field and there would be some kind of motivation for one of ordinary skill in the art to combine what they disclose.
Well, there is a protocol and it is this : "Nothing shall be deemed to be obvious" (except perhaps things that are so obvious that a three year old could invent them).
> A patent is a limited-time monopoly to an idea that you can then extract value from
That's the incentive given to the inventor. In exchange society is supposed to eventually get access to an idea that anyone can make use of.
There's a huge breakdown with this system though--the majority of software patents aren't written in a way that would allow someone to reproduce them. Or as you've pointed out they're so obvious that they would have existed without the patent monopoly grant.
The trivial answer against that is to say the actual, quantifiable loss is the licensing fees that the plaintiff would have otherwise been able to extract from the defendant.
