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So the question is, how do we make sure lawyers don't want to? (without going to jail). Don’t get caught. ;-) But seriously, there only seems to be one answer

So the question is, how do we make sure lawyers don't want to? (without going to jail). Don’t get caught. ;-) But seriously, there only seems to be one answer that is likely to work in practice: change the risk/reward structure so that patent trolling isn’t profitable any more. One obvious approach would be making fewer things subject to patent protection in the first place. You could explicitly exclude whole categories like software or business method parents, assuming you could define them clearly enough. You could raise the general bar for granting/defending patents in terms of originality and non-obviousness. You could leave the standards the same in principle but apply more robust checking for prior art and/or a more thorough consultation to determine obviousness before awarding a patent. Each of these has costs in different places: principally, the legislature, the courts, and the patent office, respectively. Another approach would be to look at the types and magnitudes of consequences that result if you lose a patent case, either by being found to infringe someone else’s patent or by claiming that someone infringes your patent and failing to win the case. For example, what if the remedies available to someone who owned a patent but who was not actively working to exploit that patent in some reasonable way themselves were made dramatically less than the remedies available to someone who was using the patent system “properly” to secure exclusive rights while they worked hard to exploit a real invention? What if there were a meaningful cost to bringing a patent case and losing not just because the court invalidated your original patent but also because the court actively determined that the original patent had been [some legal specification of “obviously abusing the system”], a kind of patent case analogy for dismissing with prejudice?

luriel 14y ago
The simplest solution is to abolish patents, the government has no business going around handing out monopolies.
- mogrim 14y ago
  So you spend millions (or billions, even) on research, then someone can just come along and copy that work? Where's my incentive to do all that R&D?
  - ktizo 14y ago
    Where's my incentive to do all that R&D? Curiosity, love, boredom, responsibility, etc... There are a lot of incentives other than profit and billions already gets spent in R&D for reasons other than profit. But if profit is your motive, and patents don't exist, you have several options. One of the interesting ones is that of monetising expertise. People will copy you, but you are also known globally as the expert, for the simple reason that you can prove you developed it. So you not only have a market made of the people who will buy the stuff, but also of those who want to learn off the expert how to build the stuff. To make the most of this requires good marketing, and an acceptance that you should be developing your next thing for when the money slows down from the current one as the market saturates, but that is the same as today anyway.
    - creativename 14y ago
      Well that's good and well for an individual or a small group, but the classic case for patents is in things like pharmaceuticals. A patent protects someone from reverse-engineering something that a company may have spent years perfecting for hundred of millions of dollars.
      - mbell 14y ago
        > but the classic case for patents is in things like pharmaceuticals That is also the classic case for patent abuse. Take a drug that works, tack on some non-active atoms somewhere, change the name, patent it, jack up the prices on the old drug when the patent is about to expire to push buyers to your new monopoly.
        danielweber 14y ago
        Please explain how customers are locked into the "new monopoly." If Screwitall-A can now be made generically and works just as well as the newly made and patented Screwitall-B, customers are totally free to switch to -A if they care about the cost. (Customers usually don't care about cost, which is certainly a problem for holding down prices, but this doesn't seem anything like "patent abuse.")

luriel 14y ago

The simplest solution is to abolish patents, the government has no business going around handing out monopolies.

mogrim 14y ago
So you spend millions (or billions, even) on research, then someone can just come along and copy that work? Where's my incentive to do all that R&D?
- ktizo 14y ago
  Where's my incentive to do all that R&D? Curiosity, love, boredom, responsibility, etc... There are a lot of incentives other than profit and billions already gets spent in R&D for reasons other than profit. But if profit is your motive, and patents don't exist, you have several options. One of the interesting ones is that of monetising expertise. People will copy you, but you are also known globally as the expert, for the simple reason that you can prove you developed it. So you not only have a market made of the people who will buy the stuff, but also of those who want to learn off the expert how to build the stuff. To make the most of this requires good marketing, and an acceptance that you should be developing your next thing for when the money slows down from the current one as the market saturates, but that is the same as today anyway.
  - creativename 14y ago
    Well that's good and well for an individual or a small group, but the classic case for patents is in things like pharmaceuticals. A patent protects someone from reverse-engineering something that a company may have spent years perfecting for hundred of millions of dollars.
    - mbell 14y ago
      > but the classic case for patents is in things like pharmaceuticals That is also the classic case for patent abuse. Take a drug that works, tack on some non-active atoms somewhere, change the name, patent it, jack up the prices on the old drug when the patent is about to expire to push buyers to your new monopoly.
      - danielweber 14y ago
        Please explain how customers are locked into the "new monopoly." If Screwitall-A can now be made generically and works just as well as the newly made and patented Screwitall-B, customers are totally free to switch to -A if they care about the cost. (Customers usually don't care about cost, which is certainly a problem for holding down prices, but this doesn't seem anything like "patent abuse.")