This is Google’s proposal for stopping patent trolls and fixing the patent system

With all the recent and on-going lawsuits between major tech companies, there has been a lot of discussion regarding patents — the patents themselves, the patent system in the US, and those that simply seek monetary gain by abusing this system. The latter are what we call “patent trolls”, individuals or public entities that hold patents (which are typically very broad in scope) for the sole purpose of suing others and making money off the lawsuits. Kent Walker, Google’s senior vice president and general counsel, says Google has a fix for that.

In a series of opinion pieces running on Wired, Kent Walker outlines this fix in three simple but very crucial steps.

First is “let’s stop bad software patents from issuing”. This is, to put it simply, the root of the problem. The reason why the patent trolling problem exists in the first place is because patents, intended to be used for abuse, are granted. If we don’t grant the “bad” patents, then the problem would be greatly mitigated. As part of the process to stop bad software patents from being issued, Walker suggests that “we should demand better descriptions and clearer claims that map the real contribution”, as a means to prevent many of these “elastic claims”.

The second is “weed out the bad software patents that have already been issued”. Walker notes that it was in the 1990s, when the US Federal Circuit first allowed software patents, when many current abuse-able patents come from. The broad nature of those patents is what makes them especially alluring to patent trolls, with some trolls being as ridiculous as claiming ownership over the idea of e-commerce. After all, not all patent trolls started off as patent trolls; some may have been legitimate-companies-with-patents-turned-trolls and this second step is necessary to get rid of them.

The third of these steps is the need for “clearer rules for damages and awarding costs”. Walker points out the recent case of Apple being ordered to pay a sum of $368 million due to patent litigation via a patent troll. He notes that these large amounts of money encourages patent trolls to continue doing what they are doing.

Essentially what Walker is saying is if someone can file for a broad patent which they can use against a company that does all the hard work to create actual useful products and services, then patent trolling will continue to exist. Why do the hard work when you can essentially game the system, and profit from those that do try to innovate?

It should be noted that while Walker is specifically talking about patent trolls (companies that exist for the sole reason of suing other companies over intellectual property), his arguments and fixes can be applied to legitimate companies that take part in frivolous patenting and litigation. You know, like patenting the turning of a page in an eBook. (Just sayin’.)

This is a sad quagmire that the tech industry has to face. However, if people like Kent Walker continue to highlight the issues with our system, with fixes ready to be implemented, hopefully more people take notice and eventually help put an end to it.

[via Wired, image via USPTO]

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11 comments

  1. clockmendergb

    @Coyote:
    I saw your original posting and your thoughts do tend to parallel mine in most cases.
    It was very nicely stated

    I just see how easily these patent laws could have been created if these law makers had used the brains their god gave them and bothered to ask everybody that has an interest in an idea from the Mega corporation to the lowly end user their opinion.

    I went for Ten years just as a figure your Five with obsolescence sounds even better with regards tech .
    100% agree that unused patents become void after a set time and that the patent only applies to the originator.
    I have stated this one many times

  2. Coyote

    I said this in another article but it’s worth moving here (with a bit of editing);

    Why is our patent system so reliant on “judges”, we shouldn’t be allowing human decision to effect these at all. A patent should be set in stone, diagrammed to the T. Then patents should expire, they should only last as long as it takes to recoup research & development costs (maybe 5 years max). During this time however a company may license their patent. If you sit on a patent or it’s used by a competitor you are given a set time to react, if you don’t then your right to sue is invalid and the patent may be stripped. After the patent expires the original owner releases all source code/diagrams/plans/etc to the public.

    Some would argue that that would cut profits, but I’d like to point out most of these patents that trolls go after are only viable for a few years and then rendered obsolete. Obsolesce, another thing the patent office needs to look into.

    As for buying “used” patents, it should be made illegal, once the original owner dies, goes out of business, or it expires its fair use.

  3. clockmendergb

    My first thought on how we could change the system.

    1 register a patent in all detail. (Patent Pending)

    2 put the details out for all to scrutinize allowing any other party adequate time to object.(pending period)

    3 allow the original company time to remove any prior art or general use details that are causing objections .

    4 Final patent hearing open to other interested parties to guarantee no objections are still outstanding.

    5 Patent applied.and covered for 10 years.

    6 renewal (follow the same original process)
    have to prove its use by the holder in that time period
    !0 years etc etc.

    its money for the government in fees and it makes it impossible to get patents without the competition knowing.

    I imagine the system was designed to work a bit like this but it does not seem to.

    Feel free to throw in more possible ways the patent system could be improved for all.

    Maybe our communal brain power could come up with a way to create a fair patent system that gets rid of the need for litigation

    I doubt we could change the system but you never know unless you try. Right

  4. Mike

    I always find the pejorative term “patent troll” interesting: originally, it often was used by “establishment companies” to pejoratively characterize those companies that buy patents simply to sue on them. But, patents, in the end, indeed are “intellectual property” with related rights–is there anything wrong, I wonder, with a company using the laws and enforcing patent rights (just as one might apply tax reduction provisions under the tax laws)?

    It all got more interesting once the “big guy companies” started acting similarly (and many of them, indeed, do, getting patents simply to stop other companies tactically, or to generate income from licensing (upon the threat of a lawsuit), even though not using the technology themselves), while simultaneously decrying the so-called trolls. Talk about the pot often calling the kettle black.

    And what about Apple, patenting everything under the sun? Isn’t it “patent-trolling” as well, with regard to patents that many people might say never should have been issued (such as tablets with rounded corners, and a page-turn animation)?

  5. Gary J

    A vast amount of income is gained by the government via the Patent system, the whole concept of the legal system around it, the high-profile cases, the lawyers, the judges, its a huge engine for pumping vast amounts of funds into the governments back pocket.

    It will never change. Walker already knows this. Some government systems work the way they do no matter how stupid or lack-of-common-sense simply because they are all part of the revenue generation principles which keep large governments operating.

    Bill Gates has already been down this road, years ago!

  6. ds5929

    So the solution is for Congress to write sensible patent laws,and then for the patent office to apply those laws sensibly? Good luck with that. It’d be interesting to find out how many dollars these ambulance chasers and their companies donate to the campaigns of the pols who write the rules under which their anti-competitive practices thrive.
    AF’s right too. Loser pays is a good start. I believe this is the system in Britain now.
    Just another reason I’ll never buy apple.

  7. AFPhys

    I have been railing about part two aspect of his “solution” since VisiCalc and Apple icon interface lawsuits.

    Another part that ought to be considered is a “loser pays court fees as well as damages asked”.