Patent Trolls

There are three main ways to protect your creative and inventive works. In most cases, the method you use depends on the type of work you have created. Your choices are:

1. Patents are used for inventions, processes, or improvements on an existing invention. You can get a patent for a "better mousetrap" or for a method for turning mouse bodies into a new energy source. Patents cannot be issued if the method is "obvious to one ordinarily skilled in the art". Also, according to the exisitng law, patents can be overturned if you can find "prior art". In the IT world, devices can be patented, and so can software.
2. Copyright is used for creative works like music, fiction, non-fiction, paintings, photographs, sculpture, dramatic performances and other creative works. This is why you cannot legally record a video of a live performance or share copyrighted music with your friends. 
3. Trade Secrets are only effective as long as you keep the method or recipe secret. Once it is revealed, even inadvertently, you lose all protection. Examples include the receipes for Coca-Cola and KFC's "secret herbs and spices". Nothing prevents someone from using reverse engineering to learn the methods. I remember once creating some fried chicken in my kitchen that tasted almost exactly like KFC. Too bad I didn't really pay much attention to what I used....

Unfortunately, the patent system is busted. Patents are being issued for things that are clearly obvious. For example, the shape of the iPad is patented, it's a rectangle, Amazon has a patent on "One-Click" shopping, 

The other problem, which I will deal with here, is companies (Patent Trolls or Non-Practicing Entities) who buy up as many general and vague patents as they can, with no intention of actually creating a product with them. 

For example:

http://arstechnica.com/tech-policy/news/2007/08/ip-firm-accuses-google-9-other-companies-of-patent-infringement.ars

The patent, titled "Automatic message interpretation and routing system," is unsurprisingly general. It was filed in 1998 and awarded to a company called Brightware, Inc. in 2002, and it basically describes an autoresponder. "The method for automatically interpreting an electronic message may also include the step of retrieving one or more predetermined responses corresponding to the interpretation of the electronic message from a repository for automatic delivery to the source," reads the patent.

Polaris accuses Google of "actively inducing infringement" on the patent and contributing to the infringement of others by implementing its own automatic e-mail responder within the company. Amazon, Borders, AOL, and all of the other named defendants are accused of doing the same. "As a result of these Defendants' infringement of the '947 Patent, Polaris has suffered monetary damages in an amount not yet determined, and will continue to suffer damages in the future unless Defendants' infringing activities are enjoined by this Court," reads the complaint seen by Ars Technica.

Patent Trolls increase the cost, and slow down the pace of development in the IT world due to the expense of having to deal with inadvertent patent infringements. In most cases, the business model of the Patent Troll is simply to sue for damages whenever someone infringes on their patent, they do not otherwise produce any product or service. With copyright protection, when software is found to be accidentally too similar, the developer can fix their code easily using different algorithms to solve the same problem. When the problem is patented however, no amount of re-writing the code will make it non-infringing.

One defense against a bad patent is to prove "Prior Art". Farhad Manjoo wrote in Slate about how a company is using crowd sourcing to find prior art to allow their clients to overturn bad patents.


http://www.slate.com/articles/technology/technology/2012/02/article_one_partners_how_a_bunch_of_amateur_sleuths_are_stamping_out_patent_trolls_.html

The problem is that searching for old inventions is really difficult. Patents in the United States are keyword coded and searchable, but they use dense, technical language that makes them difficult to browse through. What’s more, “prior art”—a description of an invention published prior to a particular patent’s filing date—can exist anywhere, not just in a patent database. If I sue you for infringing my patent on an ancient Chinese healing technique, you’d have to look all over China for a description of the technique that was published in days of yore. But how would you know where to begin?

Unfortunately, this makes it still difficult to combat Patent Trolls. So here is my suggestion for reforming Patent Law. I release it into the Public Domain, no patents here:

1. Software cannot be patentable, only hardware. Firmware is defined as software since it can be updated without replacing any parts.
2. All issued patents are conditional for 12 months. A company has 12 months of protection to begin producing a product and releasing it to the market.
3. If a company is producing a product within 12 months, their patent protection continues for the standard duration of the patent.
4. If, after 12 months, if there is no process in place to produce a product, the conditional patent expires. Transferring the patent to another company does not restart the clock.
5. A company can request a one time, 12 month extension if there are unanticipated glitches that need to be worked out prior to manufacture or sale.
6. The definition of "Producing a Product" can take many forms:
• Self -manufacturer and sale
• Subcontracting the manufacturing and/or sale to another firm
• Licensing the patent to any interested firm, who then manufacture and sell the product
• Any or all of the above, plus any other arrangement that could be considered production.

However, merely suing infringing companies is not considered "Production". You may sue during the first 12 months, but any damages will be put into escrow until the patent is no longer "Conditional", and the infringing company will be subject to cease-and-desist until the end of the 12 month period. If the patent expires due to non-production the escrow money is returned and the injunction expires. If however, the patent holder begins production, they get the damage reward (plus interest) and the injunction becomes permanent.

The main idea behind this is that patents can still be issued when valid, BUT a company is not allowed to sit on them and use the court system to make all their money. If you cannot monetize your patent yourself, you can still license the patent and make money off the royalties, but you cannot use the legal system to bully others.

This system still allows inventors to profit from their inventions, but explicitly disallows them to simply sue others into oblivion - they must take action to bring their patents to market to justify being awarded damages by the court. If you have no intention of marketing your product, another company is not damaging you by releasing a similar product. Innovative individuals are still rewarded, but innovation itself is not needlessly frozen by legal threat from Non Producing Entities or Patent Trolls.

Is my idea perfect? Nope. It isn't. So please improve on it.