A modest proposal towards patent reform

[unixronin]

I had a thought about patents while reading this C|Net article, which discusses the recent acquisition of Linux-related patents from Microsoft by the Open Invention Network, the fact that OIN was excluded by Microsoft from bidding directly for them, and speculates that Microsoft may have been attempting to "accidentally" arrange for the patents to fall into the hands of a litigious atent troll who might then go and file a court case against Linux developers and users based on the patents, much after the example of SCO.  It occurred to me that shenanigans of this type could be completely prevented in future by making an essentially-simple change to copyright law.

The change I would propose is this:

Patents cannot be sold.  They can only be licensed or released.  The original owner of a patent may, for an appropriate consideration, license a patent to any licensee exactly as now, and exactly as now that license may be exclusive or not, and may be for a limited term or for the life of the patent, but ownership of the patent always remains with the original patent owner.  Only the original patent owner may sell licenses to that patent; a licensee, even one with an exclusive lifetime license, cannot re-license the patent; but an exclusive lifetime license, once granted, cannot be revoked by the patent owner, exactly as though the patent had been sold ... as long as the licensee actually uses the licensed technology.  Patent licenses are valid only so long as the licensed technology is in use by the licensee; if you license a patent but then don't actually use the licensed technology within, say, one year, the license reverts to the patent owner.  The licensee has full rights to use the licensed patent, but the only right of transfer the licensee has is to release their license, in which case it reverts to the original owner.

Only the original patent owner has the right to litigate for infringement of the patent, though the patent owner has the right to delegate this power to a licensee of the patent to litigate against a specific infringer on the patent owner's behalf.  Thus, a licensee of a patent may not litigate against an alleged infringer of that patent without the knowledge and approval of the patent owner.

The owner of a patent may, at his or her discretion, at any time when no outstanding licenses to the patent exist, opt to release the patent, in which case the technology covered by the patent becomes public domain and no part of the technology covered by the patent may subsequently be re-patented.

If you are the original owner of a patent, this affects you in two ways:

1. You can no longer lose control of your patent.  Anyone you would have sold it to, you can now instead sell an exclusive lifetime license for the same price.

2. You can no longer transfer your patent to a troll who will litigate for you by proxy, and have plausible deniability that you intended it, because the troll cannot litigate under your patent without your permission.

If you are a would-be buyer of a patent, this affects you in three ways:

1. You have to get authority from the patent owner to litigate for enfringement, and you do so on the patent owner's behalf.

2. You cannot resell the patent or relicense it to others, because you don't own it in the first place.

3. You can't acquire the rights to a patent (under exclusive license) and then just suppress it because it would compete with a technology you control.  It's use it or lose it.

If you're a patent troll ...

...Well, then you're pretty much right out of luck.

• You can't buy up patents for the purposes of litigation, or to resell them to the highest bidder;

• You can't acquire patents merely to sit on them and prevent them from being used;

• You can't litigate on the basis of patents that you don't own, without the patent owner's approval.

The upshot:

Patents would still protect invention and innovation.  Companies who wish to gain exclusive control of an invention can still do so with the inventor's consent ... as long as they actively use it.  Individual inventors retain more control over their patents.  But patent trolls and patent speculators with no interest in actually using, developing or furthering the patented technology will be dead in the water.

Thoughts...?

Comments

Not!

[unixronin.livejournal.com]

I disagree. Consider the following scenario:

I invent a way to make an internal-combustion engine radically more fuel-efficient. (Ignore the theoretical limits of Carnot efficiency for now.) I try to make money from it myself, but despite converting my car and motorcycle to use my invention, and trying to market my invention to major automakers, I am unable to attract any investors or licensees. General Motors, however, quite unashamedly steals my invention and says "So sue us", in the sure knowledge that their pockets are so much deeper than mine that they can stall me in the courts until I go bankrupt. Their market share goes up 23% in a single year. My attorney files an initial brief showing GM's own marketing materials which exactly describe my invention in their new top-selling line of hyper-fuel-efficient cars, side-by-side with my patent, and petitions the court for summary judgement against GM. By a wonder of the legal profession, the judge grants the petition for summary judgement, and I am subsequently awarded thirty million dollars in damages.


Under your rule, I now have a choice: Donate the money to charity, give it to the state, or walk away from my patent.

I don't think so.

As for "the patent has to be in active use and making some money, or you lose it in a year" - in the scenario above, all GM has to do is stall me for a year, and bam, my patent is gone forever and they can use my invention for free with impunity. Again, I don't think so.

What if it's a valuable patent, but obscure or expensive to develop, and it takes me over a year to find a licensee willing to take it on?


No. This won't fly. You might as well abolish patents entirely. No company is going to license a valuable patent when they can just stall for at most a year and get it for free. Patents filed by individual inventors woulds no longer be worth the paper they're printed on.