The Patent Pledge: Good Idea... But Wrong Target

from the it's-a-start dept

Thu, Sep 1st 2011 7:12pm — Mike Masnick

Paul Graham's latest brainstorm is (as per usual) pretty thought provoking. He's put together an idea called The Patent Pledge in which companies agree that they'll never first assert a patent against a company with less than 25 employees. A small group of companies have already agreed to the pledge. Though, as he notes, there's nothing binding about the pledge and the terms of the pledge are intentionally vague.

The bigger issue is that it seems like this pledge may be targeted at exactly the wrong group on both sides of the pledge. First off, the companies signing it tend to be startups who aren't asserting any patents against anyone anyway. Second, when startups of less than 25 people are getting sued for infringement, it's pretty frequently by small trolls, who have no business but suing (or threatening to sue), and who would never sign such a pledge. I don't think we're going to see Lodsys or Kootol sign up for something like this ever, and no amount of shame is going to make them care about it.

Right now the big problem with patents tends to be more focused on the trolls who are suing and the bigger, older tech companies who are moving away from innovation and into a "protecting" mode with a big pile of patents.

Still, I do like the general idea of figuring out ways to put more societal pressure on companies not to sue innovative companies over patents, but I'm not entirely sure if this idea, as set forth, is the best way to do it. In fact, the other issue with this is that I could even see scenarios under which this makes things worse -- in that a patent holder who signed such a pledge could just wait until a company has more employees... and then can claim it can demand a much bigger award for infringement, since the company has been benefiting from the fruits of infringement for longer.

However, I'm curious if anyone has idea on how to improve on such a pledge, to see how it might be made more effective.

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Filed Under: patent pledge, patents

35 Comments

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Anonymous Coward, 1 Sep 2011 @ 7:18pm

The people doing the suing will not stop and I doubt they will ever pledge to anything.

So I don't believe this is a good idea or worth pursuing.

Nonetheless I could be wrong, so I will hope that I'm this time around and be happy to be proved wrong.
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Anonymous Coward, 1 Sep 2011 @ 8:33pm

Here's an idea. Have plaques made out of something fairly soft (possibly styrofoam), with the following written on it:

Life is pretty simple: You try something. Usually it fails. Sometimes it works. If it works well, others quickly copy it. Then you do something else. The trick is to keep trying something else.
~Leonardo Da Vinci

The pledge is that before suing anyone over a patent issue, you will bonk your head against that plaque three times. If you still think you should sue, go ahead. If you think maybe you should spend your time, effort, and money on innovation instead of on lawsuits, do that instead.
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David Cortright (profile), 1 Sep 2011 @ 8:46pm

No offensive use
The simplest pledge would be to assert that you will never initiate an offensive patent suit against any company, no matter how large.

But seriously, this is all BS as long as patent trolls are out there.
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Anonymous Coward, 1 Sep 2011 @ 8:59pm

if your buying or filing patents just to protect your company is there any reason you can't donate them into the public domain? if they are purely defensive shouldn't they perform their duties just as well there?
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Anonymous Coward, 1 Sep 2011 @ 9:16pm

Perfectly Simple Fix
Why not just get rid of all the suing altogether? That is easily done, by Congress. Just repeal the part of the law which makes patent infringement illegal. With infringement gone, the patent trolls are out of business. Patents can get used for some other purpose than running an extortion racket. Junk patents are either gone or harmless. Trolls and their able assistants, the inventors of the obvious and the already known, would have no payoff for going to the trouble of getting a junk patent. The deluded would still be patenting, but their patents would be unable to do anybody any harm.

Decent inventors who really have invented something good can use their patents as a way of getting consulting work and to get credit. Greedy inventors, who are irrationally convinced that it would be a terrible thing for someone else to use their invention, without them getting paid, can be told, "Your invention is not required." Independent invention works just fine. Trade secrets and contract law still exist, so the greedy inventors might get lucky, if they play their cards right.

The patent office should turn into a repository of knowledge about technology, freely available to all. One might hope, maybe they might get their indexing and search system fixed.

Or, the USA could just keep on damaging its own economy. The trouble with that plan is that China is already free of patent trolls, due to the magic of selective enforcement. Ask the guys populating the vibrant "shanzhai" scene, how bothered they are about patent infringement. You will give them a good laugh.
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Anonymous Coward, 1 Sep 2011 @ 9:54pm

We need like a patent GPL kinda agreement. We won't sue anyone who doesn't initiate patent lawsuits for infringement, we only sue those who initiate lawsuits (but counter-suing for infringement won't get you sued). Groups with large patent portfolios that only sue those that sue.

Too bad it won't work against patent trolls (NPE's).

Perhaps a patent troll that only trolls those who initiate patent lawsuits might be a good idea.
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Felix Pleșoianu, 1 Sep 2011 @ 10:01pm

Good idea? Bwahaha
Actually, it's a terrible idea. A corporation's promises aren't worth squat. Google's "Don't be evil"? They stopped respecting that promise a long time ago. And remember when Amazon remotely deleted books from their customers' Kindles? After the scandal, they promised not to do it again... and then promptly did. And what happened to Sun's policy to not sue other companies over patents once they were, you know, bought out?

No, #5 is right. Only a legal solution will fix this mess, and Paul Graham is being surprisingly naive in this issue.
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Atkray (profile), 1 Sep 2011 @ 10:48pm

Won't work at all
If I was a patent troll I would sign this in a heartbeat.

I don't want to sue small start-ups, I want to wait until they get big enough to have some actual cash on hand but not big enough to fight back.

Probably around 50-100 employees.

Disclaimer: I am not a patent troll.
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Brendan (profile), 1 Sep 2011 @ 11:11pm

Re: No offensive use
I think you at least need to restrict this to "Software Patents" as the original pledge seems to do.

If the tech innovators generally dislike software patents, lets see them put their dignity where their mouth is. They can amass a defensive arsenal, sure, since there will be plenty of companies, trolls and has-beens alike, that will no pledge.

But you commit to no starting the fight over a software patent.

Then again, with adequate legal footwork and a pile of shell companies, how will we ever know if a player breaks pledge?
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Jan Bilek (profile), 1 Sep 2011 @ 11:45pm

Re:
If you did that your patents could not protect you - the protection is based on "if you sue us with your patents we will sue you with ours" strategy and if your patents were public domain you could not sue anyone.

But it could be possible to create some kind of GPL-like patent pool - something like "we put our patents together, you can use all patents in the pool as long as you never sue anyone, but if you sue, any patent from the pool will be used against you" kind of deal.
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Crosbie Fitch (profile), 2 Sep 2011 @ 12:18am

"I pledge not to extort the weak" - so gracious!
This is my pledge:

I will not accept the enslavement of my fellow man, nor any imposition upon his liberty, as reward for the publication of my art.

If you're going to reject the privileges of copyright and patent then don't quibble about it, reject them outright. They are unethical anachronisms and should be abolished.
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eclecticdave (profile), 2 Sep 2011 @ 3:15am

Anti-innovation Pledge
While I agree that the pledge might not have any effect by itself - what it would do, if enough companies signed up, is act as a clear message to congress that patents are anti-innovation.

After all companies signing this pledge are effectively turning down a potential revenue stream, because they recognise that it is against their wider interest.
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Josh in CharlotteNC (profile), 2 Sep 2011 @ 4:20am

Re: "I pledge not to extort the weak" - so gracious!
I'll get behind that.
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Anonymous Coward, 2 Sep 2011 @ 5:33am

What we really need is an overhaul of the law itself. Copywrite and patent laws were originally supposed to protect innovation, for the inventor and his immediate family (hence the 17 year clause) NOT for corporations to grab the rights into perpetuity.
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Stephan Kinsella (profile), 2 Sep 2011 @ 5:35am

A Patent Defense League
Mike,

I agree that this is intriguing, but not likely to go anywhere. The big threats, as you note, are patent trolls, and large companies with huge patent portfolios. They would never take this pledge.

A better idea is the �A Defensive Patent License Proposal," as I discuss in the addendum to The Patent Defense League and Defensive Patent Pooling. However, as I noted there, this just provides a mutual non-suit group, but does not provide any protection to the licensees from outsiders--which would be large companies and trolls.

In the same blog post I noted my own idea for a "patent defense league," in which smaller companies all pool their patents and agree to let each other use them if needed defensively, in countersuits, against non-members. This actually could provide some protection against the large patent oligopoly firms now. Not against trolls, of course, since they cannot be counter sued. However I believe trolls are not the biggest problem: they only want money, not to shut down the victims; so trolls at most act as a type of tax. But the oligopolized corporate giants are the big threat: they create walled gardens of quasi oligopolies maintained by their giant patent holdings and assets to engage in patent lawsuits, which would be used to shut down any upstart competitor. This is the big threat, not trolls. So if a patent defense league patent pool contained tens of thousands of patents, the large companies might for once be (more) reluctant to sue a small company that is a member of the league, since there is a good chance one of the pool's patents could be asserted against the patent aggressor.
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ahow628 (profile), 2 Sep 2011 @ 5:50am

Reasonable mandatory licensing would be a nice first step that would curb about 50% of the craziness happening out there. Next up: Suits over what "reasonable" means!
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nasch (profile), 2 Sep 2011 @ 6:24am

Re: Perfectly Simple Fix
Decent inventors who really have invented something good can use their patents as a way of getting consulting work and to get credit.

If having a patent were any kind of sign of having invented something useful or interesting, yes. But it's not. The only useful feature of patents is the exclusion, so if you get rid of that it would be better to get rid of patents entirely.
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nasch (profile), 2 Sep 2011 @ 6:32am

Re: A Patent Defense League
That would be great, and no reason someone can't try it. I really like the idea of the pool getting so big that the members finally lobby Congress to get rid of patents (or severely curtail them). Thus, it could even get rid of the patent troll problem! That would probably take many, many years, but I haven't heard of any other way that even has a chance.
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Stephan Kinsella (profile), 2 Sep 2011 @ 6:54am

Re: Compulsory Licensing
I propose various significant improvements in Reducing the Cost of IP Law, including compulsory licensing. This would be an improvement.
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Crosbie Fitch (profile), 2 Sep 2011 @ 7:11am

Re: Re: Compulsory Licensing
One cannot improve patent, unless by 'improve' one means 'further enrich the monopolist' or 'enhance the measures available to the extortionist' or 'compensate patent holders for the dissolution of their unethical monopolies'.

There is only one improvement that is in the interests of all mankind, as opposed to the privileged few: Abolish patent!

If there is value in an inventor's talent in inventing things then the market will provide the inventor with an equitable exchange for the value of their talent.

You should know by now that patents were never about incentivising/rewarding the inventor. That is a latter-day revisionist pretext and fairytale to placate the masses.

Monopolies are an instrument of injustice, a corruption implemented in the interests of the state and the monopolists so beholden.
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nasch (profile), 2 Sep 2011 @ 7:30am

Re: Re: Re: Compulsory Licensing
One cannot improve patent, unless by 'improve' one means 'further enrich the monopolist' or 'enhance the measures available to the extortionist' or 'compensate patent holders for the dissolution of their unethical monopolies'.

That is simply not true. If patents are bad, then making them less bad is an improvement. Don't fall into the perfect solution fallacy.
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Crosbie Fitch (profile), 2 Sep 2011 @ 7:38am

Re: Re: Re: Re: Compulsory Licensing
Sounds to me more like the 'appeal to moderation' fallacy.

If slavery is bad, then making slavery less bad is an improvement.

Why are people so scared to abolish patents? Is it 'better the devil you know' syndrome?

Abolishing patents will by no means result in perfection, but it will at least bring one legal abomination to an end.

Tell those campaigning against software patents that they should compromise with 'less bad software patents'.
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Anonymous Anonymous Coward, 2 Sep 2011 @ 7:50am

Pledge Ammendment
Add a value proposition.

Will the world be better off (and therefore me) if I sue? Or, will the world be better off (and therefore me) if I don't sue?
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staff, 2 Sep 2011 @ 9:22am

another biased article
�Patent troll�

Call it what you will...patent hoarder, patent troll, non-practicing entity, etc. It all means one thing: �we�re using your invention and we�re not going to pay�. This is just dissembling by large infringers to kill any inventor support system. It is purely about legalizing theft.

Prior to eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the Supreme Court decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Essentially, large infringers now have your gun and all the bullets. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now some of those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don�t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back in the patent system with injunctions fully enforceable on all infringers by all inventors, large and small.

For the truth about trolls, please see http://truereform.piausa.org/default.html#pt.
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nasch (profile), 2 Sep 2011 @ 9:51am

Re: Re: Re: Re: Re: Compulsory Licensing
I think you misunderstand me. I'm not arguing against abolishing patents. I'm in favor of abolishing patents. I'm telling you that your statement that it's impossible to improve patent law without repealing it is fallacious.
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nasch (profile), 2 Sep 2011 @ 9:52am

Re: Pledge Ammendment
Will the world be better off (and therefore me) if I sue? Or, will the world be better off (and therefore me) if I don't sue?

Unfortunately, that doesn't work, because some people are better off (or at the very least believe they are) if they sue, even if the world as a whole is worse.
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Crosbie Fitch (profile), 2 Sep 2011 @ 10:12am

Re: Re: Re: Re: Re: Re: Compulsory Licensing
It is impossible to 'improve' patent qua make it less unethical in the same way it is impossible to make a pregnant woman less pregnant. Either you abolish/abort, or you embrace the privilege/progeniture.

If 'improve' means "improve patent's alleged ability to encourage useful invention without enabling patent holders to extort those who utilise patented designs" then that is also impossible since patent not only doesn't encourage useful invention, but it is all about the privilege to threaten infringers, i.e. extortion.

You're only really left with 'improve' as in "improve patent's effectiveness as a means of extortion", which I will concede is a possibility.
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darryl, 2 Sep 2011 @ 8:21pm

Stupid Idea - fundamental economic changes - different rules for different people.
The number of employees a company has, has very little or nothing to do with turnover, profit or any aspects of the law.

It is 'directly' employed, or indirectly employed, could the CEO of 24 of the largest tech companies on the planet form a shell company and directly employ only 24 people, but indirectly employ thousands of others in manufacturing and distribution ?

so if you are a 'small' business you get to play by a different set of rules as the other businesses that actually employ people and create products of substance ?

"oh it's too hard for us to run a business under the existing laws, (allthough lots of other people can do it fine) we are just not good enough so we need to be able to steal off others to employ our couple of dozen people at the expense of a company that is employing 10's of thousands of workers".

Thats just stupid...
If you are not big enough or not good enough to enivate your own designs then live with it, either get out of the industry and do something else or STFU.... ..

What would be better (and actually possible) would be if a small company (or any company) can prove and show that a company that holds a particular patent is 'sitting on it' and not employing that patent in active products then the first company could have the right to challenge the ownership of said patent, and be able to 'sub-licence' that patent if they can show they are willing and ABLE to utilize that patent in a product for profit.

That would at least ensure that people do not 'sit on' patents, and that patents of value are converted into products that benifit the community.

But to do that you would have to prove that the company that owns that patent is NOT employing it, and that you CAN and WILL.
If you fail to employ that patent if you are allowed to use it, you will be fined a great deal of money and you patent will return to the original owning party.

It would be a "have a go" clause, if you think you can make good money from a patent, and that patent exists but is not being employed you can "have a go", but if you fail you will pay, if you do not fail you will profit from the patent. (and pay appropriate license to the owning company).

But this "if you such and are small we'll let you play under different rules" is a joke... it is stupid to even propose it....
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nasch (profile), 2 Sep 2011 @ 10:26pm

Re: Re: Re: Re: Re: Re: Re: Compulsory Licensing
Improve means "lessen the harm patents cause to society". It is absolutely possible to make patent law less bad than it is now without repealing it entirely. I have no idea why you believe otherwise.

If you were given two choices: 1) leave something the way it is or 2) change it so that it's less harmful, do you think one of those would be an improvement? If not, why not?
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nasch (profile), 2 Sep 2011 @ 10:29pm

Re: another biased article
Call it what you will...patent hoarder, patent troll, non-practicing entity, etc. It all means one thing: �we�re using your invention and we�re not going to pay�.

No, it really does not mean that. Patent trolls do not invent anything. They buy patents (not inventions, patents) and then sue with them.

Yes, I know I may as well argue with a brick wall, it's just in case anyone else is watching.
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nasch (profile), 2 Sep 2011 @ 10:36pm

Re: Stupid Idea - fundamental economic changes - different rules for different people.
What would be better (and actually possible) would be if a small company (or any company) can prove and show that a company that holds a particular patent is 'sitting on it' and not employing that patent in active products then the first company could have the right to challenge the ownership of said patent, and be able to 'sub-licence' that patent if they can show they are willing and ABLE to utilize that patent in a product for profit.

A good idea from darryl? WTH is going on around here?? Darryl, keep it up!!
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Crosbie Fitch (profile), 6 Sep 2011 @ 2:15am

Re: Re: Re: Re: Re: Re: Re: Re: Compulsory Licensing
1) Leave torture the way it is, or 2) It is improved such that suspects can only be tortured on weekdays between 9am-5pm.

1) Leave slavery the way it is, or 2) It is improved such that slaves have free healthcare.

1) Leave copyright the way it is, or 2) It is improved such that the maximum payable fine/prison term per annum by an infringer is $10k/6 months.

1) Leave patent the way it is, or 2) It is improved such that individuals/companies with
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Crosbie Fitch (profile), 6 Sep 2011 @ 2:25am

Re: Re: Re: Re: Re: Re: Re: Re: Compulsory Licensing
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Crosbie Fitch (profile), 6 Sep 2011 @ 2:26am

Re: Re: Re: Re: Re: Re: Re: Re: Compulsory Licensing
less than* $100k income/turnover are limited to liability for damages at $10k per annum.

None of these are improvements. They are unprincipled palliatives that serve only to perpetuate injustice.

You do not improve a turd by giving it a polish and a sugar coating. You take it off the menu!

People have got to deprogram themselves of the fairy tale that patent once worked to incentivise invention and bring about the industrial revolution, and can thus be repaired to do so once more. It never did! Correlation is not causation. If an inventor is worth rewarding, the free market will reward them. Patent is an impediment, a parasite on progress that enriches the monopolist and the corrupt statesmen who grant them.

* I first tried the 'less than' character, but that lost the 2nd half of my comment. I then tried ampersand lt;, but that also truncated it.
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nasch (profile), 6 Sep 2011 @ 6:08am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Compulsory Licensing
None of these are improvements. They are unprincipled palliatives that serve only to perpetuate injustice.

So your argument is that it's better to leave it the way it is rather than lessen the harm, because lessening the harm makes it less likely the whole thing will get repealed? That is reasonable. I'm not sure I agree, because the chance of getting it repealed seems incredibly remote already, but that is certainly a position you can make a good case for.

People have got to deprogram themselves of the fairy tale that patent once worked to incentivise invention and bring about the industrial revolution, and can thus be repaired to do so once more. It never did!

I agree, but that, by itself, does not mean that either 1. that isn't what it's meant to do or 2. it's impossible for patents to have that effect. I don't see any reason to doubt 1, but I do very much doubt 2. I think we'd be much better off without any patents.
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