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

[unixronin.livejournal.com]

Then I don't really understand your hypothetical objection in the first place.

[ilcylic.livejournal.com]

That would be because I don't have one.

[unixronin.livejournal.com]

I think we're going in circles. :)

[ilcylic.livejournal.com]

"Normally I would object to (government intervention), but since I hate $THING_YOU_ARE_DISCUSSING, we should use your plan to reel in some of the worst effects of $THING_YOU_ARE_DISCUSSING."

Clearer?

[unixronin.livejournal.com]

Aaaah. Now I follow. :)