Friday, May 06, 2011

A letter to Orrin Hatch: Patent trolls

Mr. Hatch,


I read with some displeasure, this article about a patent lawsuit against users of Linux: https://lwn.net/Articles/440090/.  The article points to a lawsuit instigated by "Bedrock Computer Technologies" (BCT), wherein they prevailed against Google despite the prior art that should have invalidated the asserted patent.  The prior art in question was in the source code for Linux dating back to 1997.  Of course, BCT prevailed in a jury trial in the Eastern District of Texas, aka, "The Rocket Docket."  Apparently, the jury refused to even consider the prior art, probably because it didn't come from the USPTO.


Which brings me to my next point.  I see that Microsoft has just argued before the SCOTUS, in i4i v. Microsoft, their position that burden of proof in patent cases is lopsided, and that the burden of proof for defendants should be reduced to give them a fighting chance against trivial patents that should never have issued anyway.  There needs to be an effective check on the power of the USPTO and apparently there is none.


Since patents are essentially a social contract for innovation, patent owners should not be given so much power so as to chill other innovators.  Google is one of the most innovative companies in the world and should not have to worry about patent lawsuits where prior art is so obvious and evident as in the case linked to above.  Worse, the patent is on an algorithm which is nothing more than *math*, and the last I heard, you can't patent math!


I also think it's time for a "loser pays" patent court system to keep the trolls out of the business.  If their patents aren't worth the paper they're printed on, they should not be so bold as to sue on a patent covered in prior art just so they can get an easy settlement.  If they really want it, they should be made to work for it, and suffer the consequences if they lose.  This would take all fun out of litigation for patent trolls.


I think it is very likely that patent troll victims are signing settlements that waive their right for a refund if the patent is later found to be invalid.  The law should say that this right cannot be waived.  This will further chill out the trolls and encourage innovation *and* execution, for no matter how good a patent is, execution is where the money is made.


I'll leave you with one last thought: A patented idea will create fewer jobs than a free idea by virtue of the fact that more people can use it.  Reducing the number of silly patents that are issued by the USPTO would go a long way towards creating jobs in America.


Thank you for reading this far.


Scott Dunn
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