Thursday, August 11, 2011

Stop Enforcement of Patents Without a Publicly Available Product

He takes a long time to get to it, but I 100% agree:

restrict the right of "non-practicing entities" (patent trolls) to sue for patent infringement.

That's exactly what we need. Unfortunately he spends most of his time rehashing an old debate, briefly mentions this with no ideas on how to implement it (a tough problem), and moves on.

I think you could lay down some pretty simple rules. First, you could state that a patent cannot be enforced in court if what it protects is not available to the public either through your company or through a company that has licensed it. What this would lead to is a big company potentially stealing your idea while you develop it - but you can always finish the race to get it to market THEN sue for past damages. I think this is an acceptable outcome. It would prevent patent trolls from suing because they obviously have no intention of introducing a competing product, and the cost of doing so would be too high.

It would leave the licensing option open to some abuse though, and the definition of "available to the public" needs a tighter definition as well. But hey - it's a start. More than this guy tried.

He also leaves out one last negative impact of patents: They completely disclose to the world the details of what makes your product special. They protect you from the country against competition (and even then, probably only from small players in the country - big companies have a long history of kicking over the little guy, patents and all). I question whether the value of patents remains for small innovators (which should be the goal) when they have to fully disclose what they're patenting. It seems like you should be able to file a patent, get approved, but not have it go public until you give a say-so (basically when the product is released). There's no point in having the patent anyway until then (because you can't sue until it's available to the public), and making it known beforehand is dangerous - Chinese manufacturers love to just steal designs wholesale and give US companies the finger.

That's the final piece that's missing - worldwide protection after disclosure. That's really an enforcement problem. I suppose that's up to the PTO and the US as a whole to enforce - but only after we get our own **** together.

No comments:

Post a Comment