The U.S. patent system is broken. In the old days, the goal was to protect the small-time inventor from getting ripped off by big companies. That would seemingly encourage innovation, which is regarded as a Good Thing. For decades however, the system has shifted to favor the deep-pocketed companies, who have discovered that with enough legal wrangling they can generally get utility patents on anything they want. Such patents are assigned a theoretical value and become bargaining chips. So that’s a bummer, but not the end of the world.
Lately, a number of hostile players–patent trolls–have taken to the scene. These are individuals, companies, or even shell companies who are neither inventors nor producers of goods. They simply buy the rights to patents and sue the shit out of people who may or may not be in violation. Most defendants settle because the cost of pursuing a legal battle over arcane and technical matters is prohibitive for all but the most well-funded companies. (For more information, see exhibit A and exhibit B.)
I propose a simple three-step fix to the system:
- Eliminate software patents entirely. This was a really bad idea. In software, last year’s novel invention is this year’s standard industry practice. Does the patent you got for an Internet shopping cart in the ‘90s entitle you to billions of dollars of royalties today? No. And how can you really prove when someone is in violation? Specific executions of software concepts are protected under existing copyright law. What happens under the hood is just digital plumbing.
- Prohibit “non-practicing entities” from owning patents. All patents should be assigned to either the actual inventors or to a company actively engaged in the business. Any other ownership is not in the best interests of society–remember that we want to provide incentives for only the creation and execution of ideas.
- Eliminate jury trials for patent cases. All patent litigation should be resolved by a judge assisted by a panel of experts drawn from industry and academia. I’ve served on a jury of my “peers,” and I can certify that nobody on that panel would have been qualified to evaluate a subtle question about programming, engineering, or pretty much any technical subject. It pains me to imagine what the jury had to say about the inner workings of Java APIs during May’s Google-Oracle trial.