Save America’s Patent System

Good problem to solve, wrong solution. Examine patents on use rather than before issuing.

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Alexander Reben is automatically generating all possible prior art. Which will probably take a while.

Instead, why not stop examining patents altogether?

(via Boing Boing)

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On Thursday The White House announced a trio of executive actions to fight patent trolls, most interestingly:

"Crowdsourcing Prior Art — To help ensure that U.S. patents are of the highest quality, the USPTO is announcing a new initiative focused on expanding ways for companies, experts, and the general public to help patent examiners, holders, and applicants find relevant “prior art”—that is, the technical information patent examiners need to make a determination of whether an invention is truly novel."

I've considered this for a few years as a for-profit business, paying a bounty to anyone who contributes prior art that helps take out a troll. But I have a way better idea: stop examining patents altogether.

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"The patent system in the USA is so distorted it's now more lucrative for companies known as 'patent trolls' to sue manufacturers rather than actually make anything. The problem's so serious that President Obama has got involved -- and British companies are targeted if they do business in the US. Rory Cellan-Jones investigates and finds one of the world's biggest trolls in his lair in Dallas."

Patently Absurd is available to stream for the next six days (the BBC never took me up on the offer for a new hard drive).

(previously, previously, previously, previously, previously, previously, previously, previously)

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Eolas invalidated (some more).

Joel on Software on Destroying Patents.

(previously, previously, previously, previously, previously, previously, previously)

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How to make war on patent trolls (The New Yorker), Obama wants to crack down on patent trolls. That’s not enough. (Washington Post) and When Patents Attack... Part Two! (This American Life).

And then call your congress person.

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I've supported the SHIELD Act before, which would force patent trolls to pay legal bills for unsuccessful shakedown attempts, but a TechCrunch article today made me think this through some more. 

SHIELD would be a serious deterrent for trolls who have their eye on large companies with the means to defend themselves. But trolls eat startups first and a startup is often unable to fight through the courts and get to the point where SHIELD would help. If the troll is after something like $1,000 from every company using a scanner then not many businesses are going to risk going to court. And if the troll isn't interested in any reasonable settlement then the legal fees and management distraction can kill you. 

SHIELD is well intentioned and would certainly help. But we need to stop examining patents before issuing them and do the job properly for the few that ever get used in anger. 

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A friend pointed me at the SHIELD (PDF) act today. This bill would make unsuccessful patent trolls pay defendants’ legal bills. It’s not as good as my radical plan to fix patents, but it’s a step in the right direction. If you care, let your congressperson know. Here’s the note I just sent to mine:

Dear Rep. Pelosi,

I'm writing to let you know that I support the SHIELD act Introduced by Rep. Peter DeFazio (D-OR) and co-sponsored by Rep. Jason Chaffetz (R-UT). As an entrepreneur and professional software developer I have personally experienced the job destroying effects of ill founded patent litigation. Any step to reduce this drag on our industry is a welcome step.

Regards,

Rob Ellison
San Francisco 

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Send them a troll. Now.

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The Startup Genome people have launched a complicated tool to benchmark your Startup against others.

I’ve developed a simpler model. It used to be you spent too much money on Sun and Oracle. Now it’s fighting off patent trolls.

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