Friday, 4 November 2011

Don't occupy Wall Street - occupy the patents courts!

[From a comment thread in The Register]

For some time now, I've felt that patents have been over-used and over-priced...and heading for a big fall - not just in value, either.

They're being used not only to obtain value from invention - as was always the way - but now to stifle innovation, and - worse - also to set out deliberately to destroy companies. See Jobs' recently-published quotes on Android, and Apple's outspoken intentions towards Samsung, if you're in any doubt.

It feels like we're on the eve of a war. I think we probably are, but it will come from an unexpected direction.

In China, India and other emerging economies, patents don't hold back progress in the way they do in established economies. Sooner or later, the biggest Western governments will realise the potential consequences. At some point - and it may happen sooner than we expect - there must be moves to weaken patents.

That could come from a number of directions. The entry barrier to patent enforcement litigation could be raised by having the litigant place a large bond (say, three times the compensation/penalties sought) in court escrow, to be released to the defendant if the case fails.

Given that a lot of patents are spurious, the defendant could be granted a pre-hearing opportunity to overturn the patent by submision of proof of prior art or lack of inventive step - meaning that any litigant could be faced not only with the potential of financial disaster in failure, the risk of having their patents ruled invalid.

The actions of the court in enforcing the patent could be limited: an upper limit on claim size; a strictly limited window of opportunity to file claims (in effect, a statute of limitations on patent violations); the restriction of recourse to retrospective establishment of a court-set reasonable licence fee; the removal of any powers to ban sales of supposedly infringing items, except where the defendant has failed to pay the retrospective licence fee after a reasonable period.

One way or the other, the current patents system has to be fixed, and on a worldwide basis - and not just to protect business interests.

Otherwise the human race's dying words could well be, "We couldn't shoot down the meteorite, because the patent court grounded the weapon system."

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