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One reform worth considering is that an entity that can be demonstrated to persistently engage in frivolous patent lawsuits should lose the rights to their enti

One reform worth considering is that an entity that can be demonstrated to persistently engage in frivolous patent lawsuits should lose the rights to their entire portfolio. This could be accomplished with a legal mechanism that allows the defendant to counter-sue the plaintiff as a patent troll. In this scope they could bring in previous litigative history of the plaintiff (or any related entities, piercing the corporate veil). If the judge rules in the defendant's favor, then all of the plaintiff's patents (and any related entities) are immediately released into public domain. This would go a long way to preventing patent trolling. And not just because of the direct incentives. Any entity engaging in a patent lawsuit would put their entire portfolio at risk. The larger the portfolio, the higher the risk. The individual or small company with one or a few patents has very little risk. Whereas the large company that hoards thousands and thousands of patents would bear enormous risk on any single lawsuit.

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mratsim 7y ago
AFAIK that was what Facebook tried with their modified BSD that granted patents unless you sued Facebook. Though that doesn't help against NPE.
coldpie 7y ago
I'd go a step further. The people behind this lawsuit, and anyone else owning a software patent, should be in jail for fraud.
behringer 7y ago
So they'd have one company for every patent. It won't work.
- cwkoss 7y ago
  > In this scope they could bring in previous litigative history of the plaintiff (or any related entities, piercing the corporate veil).
- michaelmrose 7y ago
  Transparent shuffling of money and legal responsibilities don't have to be an effective shield if we follow the money. Plus if you toss lawyer in jail and disbar them you will run out of lawyers to sac pretty quickly.
- munk-a 7y ago
  Or alternatively you'd manage to take down all of microsoft's patents for that one time they thought a paper clip telling people what to do was innovative... Less jokingly, I'm sure microsoft has a dumb patent or two kicking around, that doesn't mean their entire suite is BS.
  - yellowapple 7y ago
    There's a difference between having a handful of dumb patents among a sea of valid ones v. having a portfolio composed entirely of dumb patents. There's also a difference between sitting on a handful of dumb patents v. most or all of your patent litigation cases being over dumb patents.
    - munk-a 7y ago
      There isn't a difference unless that's outlined in the law or it's interpretation and I don't know how you'd sanely define things to disallow abuse here.
fludlight 7y ago
Sounds like Anti-SLAPP with IP characteristics.
munk-a 7y ago
I'd prefer just upping the potential consequences for patent trolling - heavier fines for standard violations and the option, if a violation can be shown to demonstrate clear intent, to jail the offender. Seriously, want to solve all white collar crime ever? Put some jail time on the table and watch everyone straighten right out.
alasdair_ 7y ago
Another potential reform (from the book "Radical Markets") - charge a (say 1%) property tax on the patent based on self-assessed value, with the caveat that you MUST sell the patent to anyone willing to pay your claimed value. This basically destroys patent trolling, which only works because of the asymmetrical difference in cost between obtaining a patent and defending a patent lawsuit. If the troll prices the patent too low, the person they are suing just buys it, if they charge too much, they have a massive recurring tax bill (and an incentive to settle quickly, not to drag it out in the courts for years).
- stordoff 7y ago
  Doesn't this work against small-time inventors? Price it too high, and they can't afford to keep it (don't have time to sell it or build a business around it); price it too low, and someone can just buy it off them. Perhaps it could lapse sooner if you aren't paying the tax (to discourage people from just sitting on patents), but that doesn't solve patent trolling.
  - _jal 7y ago
    Remember, the rationale for the existence of patents is to "promote the Progress of Science and useful Arts", not to reward people with monopolies, which is the mechanism. This is one of several related reasons why I hate the term "intellectual property". Ideas are not property, and shoving them into a property-rights framework and thinking of them as such leads to all sorts of perverse results.
  - baroffoos 7y ago
    It seems fair that you should have to pay some kind of fee to reserve useful ideas. If you don't have the ability to turn ideas in to reality then they should be given to someone else who can pay the purchase price.
  - alasdair_ 7y ago
    It would be possible to, say, make it royalty free until either you tried to use it in litigation or, say, five years had passed. If you can’t make the thing event slightly useful in five years, society doesn’t gain much for you having an exclusive monopoly on the thing. So long as the tax is low percentage wise, the yearly cost to keep it as your own would be well worth it.
antisemiotic 7y ago
What about just losing software patents altogether? Sorry, but from my perspective on the other side of Atlantic, it looks like a yet another example of "there's no way to avoid this - says the only country where this happens".
- tripzilch 7y ago
  I know! Let's have Cloudflare ban the patent office
- rayiner 7y ago
  They have software patents in many (most? all?) EU countries. The only thing they don’t have is patents on software code itself, which the US doesn’t really have either. See: https://www.ipwatchdog.com/2018/11/15/epo-publishes-revised-guidelines-computer-implemented-inventions/id=103316 https://www.ipwatchdog.com/2018/11/15/epo-publishes-revised-... The main criteria in the EU is whether the method embodied in the software is “technical.” (Image recognition as opposed to say a business method.) See: https://mewburn.com/resource/patentability-of-business-method-and-software-inventions-in-europe-2/ https://mewburn.com/resource/patentability-of-business-metho... In the US, under Alice, Section 101 has morphed into a very similar analysis.
Faark 7y ago
The loosing side having to pay the legal fees of the winner is an often used mechanism to deter frivolous lawsuits. Patent troll cases I've seen tend to stick to places of trial/judges without those, so could be another area to improve...

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deleted 7y ago

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mratsim 7y ago

AFAIK that was what Facebook tried with their modified BSD that granted patents unless you sued Facebook. Though that doesn't help against NPE.

coldpie 7y ago

I'd go a step further. The people behind this lawsuit, and anyone else owning a software patent, should be in jail for fraud.

behringer 7y ago

So they'd have one company for every patent. It won't work.

cwkoss 7y ago
> In this scope they could bring in previous litigative history of the plaintiff (or any related entities, piercing the corporate veil).
michaelmrose 7y ago
Transparent shuffling of money and legal responsibilities don't have to be an effective shield if we follow the money. Plus if you toss lawyer in jail and disbar them you will run out of lawyers to sac pretty quickly.
munk-a 7y ago
Or alternatively you'd manage to take down all of microsoft's patents for that one time they thought a paper clip telling people what to do was innovative... Less jokingly, I'm sure microsoft has a dumb patent or two kicking around, that doesn't mean their entire suite is BS.
- yellowapple 7y ago
  There's a difference between having a handful of dumb patents among a sea of valid ones v. having a portfolio composed entirely of dumb patents. There's also a difference between sitting on a handful of dumb patents v. most or all of your patent litigation cases being over dumb patents.
  - munk-a 7y ago
    There isn't a difference unless that's outlined in the law or it's interpretation and I don't know how you'd sanely define things to disallow abuse here.

fludlight 7y ago

Sounds like Anti-SLAPP with IP characteristics.

munk-a 7y ago

I'd prefer just upping the potential consequences for patent trolling - heavier fines for standard violations and the option, if a violation can be shown to demonstrate clear intent, to jail the offender. Seriously, want to solve all white collar crime ever? Put some jail time on the table and watch everyone straighten right out.

alasdair_ 7y ago

Another potential reform (from the book "Radical Markets") - charge a (say 1%) property tax on the patent based on self-assessed value, with the caveat that you MUST sell the patent to anyone willing to pay your claimed value. This basically destroys patent trolling, which only works because of the asymmetrical difference in cost between obtaining a patent and defending a patent lawsuit. If the troll prices the patent too low, the person they are suing just buys it, if they charge too much, they have a massive recurring tax bill (and an incentive to settle quickly, not to drag it out in the courts for years).

stordoff 7y ago
Doesn't this work against small-time inventors? Price it too high, and they can't afford to keep it (don't have time to sell it or build a business around it); price it too low, and someone can just buy it off them. Perhaps it could lapse sooner if you aren't paying the tax (to discourage people from just sitting on patents), but that doesn't solve patent trolling.
- _jal 7y ago
  Remember, the rationale for the existence of patents is to "promote the Progress of Science and useful Arts", not to reward people with monopolies, which is the mechanism. This is one of several related reasons why I hate the term "intellectual property". Ideas are not property, and shoving them into a property-rights framework and thinking of them as such leads to all sorts of perverse results.
- baroffoos 7y ago
  It seems fair that you should have to pay some kind of fee to reserve useful ideas. If you don't have the ability to turn ideas in to reality then they should be given to someone else who can pay the purchase price.
- alasdair_ 7y ago
  It would be possible to, say, make it royalty free until either you tried to use it in litigation or, say, five years had passed. If you can’t make the thing event slightly useful in five years, society doesn’t gain much for you having an exclusive monopoly on the thing. So long as the tax is low percentage wise, the yearly cost to keep it as your own would be well worth it.

antisemiotic 7y ago

What about just losing software patents altogether? Sorry, but from my perspective on the other side of Atlantic, it looks like a yet another example of "there's no way to avoid this - says the only country where this happens".

tripzilch 7y ago
I know! Let's have Cloudflare ban the patent office
rayiner 7y ago
They have software patents in many (most? all?) EU countries. The only thing they don’t have is patents on software code itself, which the US doesn’t really have either. See: https://www.ipwatchdog.com/2018/11/15/epo-publishes-revised-guidelines-computer-implemented-inventions/id=103316 https://www.ipwatchdog.com/2018/11/15/epo-publishes-revised-... The main criteria in the EU is whether the method embodied in the software is “technical.” (Image recognition as opposed to say a business method.) See: https://mewburn.com/resource/patentability-of-business-method-and-software-inventions-in-europe-2/ https://mewburn.com/resource/patentability-of-business-metho... In the US, under Alice, Section 101 has morphed into a very similar analysis.

Faark 7y ago

The loosing side having to pay the legal fees of the winner is an often used mechanism to deter frivolous lawsuits. Patent troll cases I've seen tend to stick to places of trial/judges without those, so could be another area to improve...