As pointed out by Richard Stallman at the topmost comment about EFF's proposal to shorten the patent term for software patents to 5 years, it might actually be easier to entirely abolish software patents because of a requirement by WTO to have all patents granted for a 20-year period: https://defendinnovation.org/proposal/shorten-patent-term#co...
If you're a designated inventor of a patent or a patent application who opposes patents, you could publicly state your support for patent abolition at the Inventors Against Patents site: http://inventors-against-patents.org
The problem is that you really need to weaken the system before you can completely smash it. By reducing the value of patents it gets easier to argue for the complete demolition of the existing patent system.
#1 I feel this is just a scapegoat with allowing people to hope and wait 5 years for bullshit patents to expire; I don't know what a fair length of advantage time, temporarily monopoly should exist.
#2 If someone isn't infringing, then sure - troll should pay. But a lot of unknowns could invalidate a patent, perhaps just decidedly not detailed enough by a judge who ends up reviewing it, which I don't think makes sense to be a point of having the troll pay for it. If a patent is seen as invalid, then it can no longer be used to sue people.
#3 Agreed.
#4 It would be impossible for either party to prove, so then this just leaves costs open ended for the person who owns the patent.
#5 This is confusing. They seem to be trying to deal with a problem not directly associated with patents themselves? More they just want more information to make it easier if it'd be a good idea or not to infringe? You could always send an email and ask if what you're doing infringes - assuming you're not trying to patent something on top of existing patents further. Though I imagine that's not a tactic most people would be comfortable with.
#6 Define what a small fraction is, vs. how important something is in an application; It could be the most valuable piece in some overall 'bloated' scheme
#7 If you look at benefit to the economy, currently measured by GDP, any money being spent (on lawyers) is positive for GDP, and therefore for the economy..
In conclusion, I think these suggestions put forward by EFF are meant to deal with stopping the damage and strain trolls put on the system, though not fairly take into consideration real innovation, that actually is created, and used. Things like "swipe to the right to unlock" - I don't think that's complex enough to consider it patentable - but it is patented (I believe) - but never should have been. I am sure there are much more complex systems that people can come up with, that might take many years to develop or discover - but once known and concepts turned into something tangible, it would not take long to re-engineer, so there may not then be any incentive to attempting to develop said system; It could even take years of looking for someone to fund what you want to create that you have a patent on, especially if it's "so far out there" that people might have trouble understanding its value. Anyway - it'll be interesting to see where it all goes. I think all patents, software and not, should be thrown out. Other mechanisms would surface to allow innovation to move forward.
Regarding #3 I think they want the patent holder to prove he is actually using the invention for a (commercial) benefit. If you invent a copy protection scheme they want to see you actively sell it to third parties or actively use it in your own product.
I think that makes sense to be honest, people shouldn't be able to sleep on an invention until they find a suitable company to sue for high profit margins.
Edit: This is in reply to points about software patents only.
Isn't it rather possible that the right answer for software is not like the right answer for drugs, and that it takes an expert in a particular field to propose a sensible reform (assuming one is needed in that field)?
I'm surprised to see them back a system where there are any software patents at all. I wonder if they really think they are desirable, or if this is simply political realism based on a judgement that abolishing all software patents is not achievable.
Five years seems like a very, very long time, it leaves all the short term benefits in place, e.g. muscling out the less-innovative competition. I guess this is by design.
Maybe it's about moving the Overton window, but this time in a good direction? Maybe they think that it's easier to make several small steps than one big?
I'm still looking for good literature, but intuitively I feel that small companies could still take advantage of patents for software in the original spirit of the patent system.
Also, I wonder if they intend on the working code examples to be included with the public patent after approval? If so then this would in a sense make all patented software open source, albeit with a very restrictive license. Still, that could vastly accelerate innovation and streamline arbitration.
In the end I think item 7, the proposal to research whether there is any economic benefit from software patents, is the most important and they should narrow down their scope to just that.
All of this seems reasonable, so by extension, I assume that the current system is really unreasonable. I mean, not even making the trolls pay for the legal costs if they lose? That's outrageous
The U.S. in general does not make losers pay, which is good because "loser pays" is just a terrible idea wholly unsuitable for a country that ties most valuable rights to litigation.
I've been working on a pro bono project where a small town is suing a big company for industrial pollution. It's a very hard case to win--the town has already given up a lot of arguments by having waited too long (believing that the government would protect them), and the other side has a ton of money. But being hard doesn't mean it isn't meritorious. This is a suit that needs to be brought and deserves to be brought, but never would in a loser-pays system. And maybe that would be okay in Europe, where they pay for a big government to enforce these sorts of things, but we don't do that in the U.S. Instead, we depend on private litigation to enforce peoples' rights.
Hmm. I'm not actually sure this suit wouldn't be brought in a loser-pays system. As I understand, under loser-pays, the judge has considerable discretion to decide how much the loser should pay. I would expect the difference in resources to be taken into account.
I'm not sure how this would play out, but I don't necessarily think it would be a non-starter.
In any case I think that for patent infringement suits specifically, loser-pays is urgently needed. I'm sure it's not perfect, but the benefits would far outweigh the costs. We don't need to extend loser-pays to other kinds of litigations unless and until we're comfortable doing that.
The mere possibility of having to pay would stifle most such suits, and in many (most?) fields the problem is not too few suits, but not enough suits. Using the legal system to create prospective deterrent effects, as ours does, is not compatible with mechanisms that discourage suits, because ultimately that makes rule breaking profitable for rule breakers.
I also strongly disagree that we need special rules for patent litigation. There is a rhyme and reason to the rules for cost shifting, one that doesn't depend on the subject matter of the litigation. What you seem to be implying is that patent litigants are less likely than other kind of litigants to being meritorious suits, and indeed that a patent suit is more likely than not non-meritorious. If that is the case, then the problem isn't who pays for a losing suit, but the law that creates enough wiggle room that these loser cases are being brought.
The way our litigation system fights meritless litigation is to make it relatively cheap to dispose of meritless suits. As an outsider to the practice, it seems to me that one of the big problems with patent suits in practice is that it's a relatively complex, fact-specific inquiry to determine patent validity. The usual way to address this is to add additional, easy to prove thresholds that let a case be dismissed without consideration of involved questions.
> The usual way to address this is to add additional, easy to prove thresholds that let a case be dismissed without consideration of involved questions.
This, absolutely. Giving defendants an inexpensive way to challenge patents which should not have been issued and get the case dropped would basically end this nonsense as soon at it was enacted.
As it is now, the only reason trolls are successful is because they know any legal costs are going to be far more than what they are attempting to extort, so the economics force most businesses to concede the fight.
https://defendinnovation.org
They sound pretty good to me.