7 patent reforms the White House should have proposed

The president's follow-up to his frank condemnation of patent trolls is welcome, but we need more

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What else ought to happen? What regrettable but pragmatic reforms are needed while we wait for the root-and-branch revision that sweeps away software patents for good? The White House had to hold back from all-out assault on the patent system for fear of alienating pro-patent allies like Microsoft and IBM that will be pleased to see certain trolls restrained but still want to be able to go hunting with their own weapons of mass disruption. Here's a list of further proposals I, as a non-lawyer, would like to see enacted.

Because most use of patents is to force licensing in an out-of-court settlement to avoid injunctive relief:

1. Limit the availability of injunctive relief to cases of prima facie willful infringement. It's way too easy to get an injunction that forces your victim to stop shipping its product. Many royalty agreements come about as companies settle to avoid the inevitable injunction that appears in infringement suits; it's rare for a case to go all the way to appeals or patent invalidation. I'd also prohibit injunctive relief if patent licensing is unreasonably withheld.

2. Make it easy for patent licensees to recover their license fees if a patent is invalidated. The settlements that companies make in such cases aren't usually affected by the later invalidation of a patent. If licensing fees had to be refunded when patents were invalidated, I believe we'd see trolls wither and die; even if their blackmail worked, they'd have to pay back the ill-gotten loot. Treating the proceeds of forced settlement with invalid patents as fraud would allow a whole genre of existing law to be easily applied, as I explain shortly.

If we must have software patents, their term and applicability needs control:

3. Make them last no more than five years, renewable once (maybe, and only if actually used in products). Time scales in the software industry are so short that anything more than five years is effectively a lifetime patent. The patent system was never intended to grant lifetime rights. Two hundred years ago, its 17-year term was considered short enough to repay the innovator's investment but not prohibit broad adoption; today, that term is too long for software.

4. Make them unenforceable against open standards. There could be an exception that allows enforcement of patents declared to the standards committee during the standardization process. That way, the mobile phone industry (which depends on such things) would be protected, standards participation would be encouraged, and we would all know which "standards" to avoid.

5. Give immunity to implementations created in clean-room conditions for interoperability. European copyright law allows reverse engineering for purposes of interoperability. Patent law ought to allow the same sort of freedom. It makes no sense to value interoperability and standards as a spur to a free market, then allow its monopolistic taxation with patent law.

Because software patents require far less investment than other kinds of patents, they should have to meet a higher standard:

6. Consider treating a failure to identify prior art more strictly. I got criticized by pro-patent readers the last time I suggested this, so it would need some strong safeguards, but it seems to me that because the main use of patents is to extract royalties without legal review on the basis of their existence, there should be a penalty for getting a patent that is later invalidated by obvious prior art.

7. Require sample code to be filed with the patent. Software patents currently provide nothing a programmer finds useful. They are effectively a description of how to prove a program is infringing, not a description of the know-how so that the knowledge of society is enhanced. Because the shared know-how is actually the foundation of the social contract that justifies patents in the first place, it seems obvious to me that software patents should include a viable implementation with an open source copyright license (BSD, perhaps) so that after patent expires its know-how is readily available.

Maybe these are naive suggestions -- I'm not a lawyer, after all. I'd be pleased for actual experts to take the heart of these ideas and turn them into effective proposals. But I've no doubt that, while the sort of actions the White House propose need to be taken to chill the trolls' business model, we need to go further.

The patent system is designed for the industrial society, a world of control points where the only role of citizens is to be consumers. Today, we live in a meshed society, where every citizen can be a maker-remixer-creator-consumer. The patent system needs reinventing for that new, meshed society, not just patching as if we still live in the old one.

This article, "7 patent reforms the White House should have proposed," was originally published at InfoWorld.com. Read more of the Open Sources blog and follow the latest developments in open source at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.

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