Too Busy For Words - the PaulWay Blog

Mon 1st Apr, 2013

Preventing patent obscurity

One of the problems I see with the patent system is that patents are often written in obscure language, using unusual and non-standard jargon, so as to both apply as broadly as possible and not show up as "obvious" inventions.

So imagine I'm going to try to use a particular technology, or I'm going to patent a new invention. As part of my due diligence, I have to provide a certified document that shows what search terms I used to search for patents, and why any patents I found were inapplicable to my use. Then, when a patent troll comes along and says "you're using our patent", my defence is, "Sorry, but your patent did not appear relevant in our searches (documentation attached)."

If my searches are considered reasonable by the court, then I've proved I've done due diligence and the patent troll's patent is unreasonably hard to find. OTOH, if my searches were unreasonable I've shown that I have deliberately looked for the wrong thing in the hopes that I can get away with patent infringement, so damages would increase. If I have no filing of what searches I did, then I've walked into the field ignorant and the question then turns on whether I can be shown to have infringed the patent or whether it's not applicable, but I can be judged as not taking the patent system seriously.

The patent applicant should be the one responsible for writing the patent in the clearest, most useful language possible. If not, why not use Chinese? Arpy-Darpy? Ganster Jive? Why not make up terms: "we define a 'fnibjaw' to be a sequence of bits at least eight bits long and in multiples of eight bits"? Why not define operations in big-endian notation where the actual use is in little-endian notation, so that your constants are expressed differently and your mathematical operations look nothing like the actual ones performed but your patent is still relevant? The language of patents is already obscure enough, and even if you did want to actually use a patent it is already hard enough with some patents to translate their language into the standard terms of art. Patent trolls rely on their patents being deliberately obscure so that lawyers and judges have to interpret them, rather than technical experts.

The other thing this does is to promote actual patent searches and potential usage. If, as patent proponents say, the patent system is there to promote actual use and license of patents before a product is implemented, then they should welcome something that encourages users to search and potentially license existing patents. The current system encourages people to actively ignore the patent system, because unknowing infringement is seen as much less of an offence than knowing infringement - and therefore any evidence of actually searching the patent system is seen as proof of knowing infringement. Designing a system so that people don't use it doesn't say a lot about the system...

This could be phased in - make it apply to all new patents, and give a grace period where searches are encouraged but not required to be filed. Make it also apply so that any existing patent that is used in a patent suit can be queried by the defendent as "too obscure" or "not using the terms of art", and require the patent owner to rewrite them to the satisfaction of the court. That way a gradual clean-up of the current mess of incomprehensible patents that that have deliberately been obfuscated can occur.

If the people who say patents are a necessary and useful thing are really serious in their intent, then they should welcome any effort to make more people actually use the patent system rather than try to avoid it.

Personally I'm against patents. Every justification of patents appeals to the myth of the "home inventor", but they're clearly not the beneficiaries of the current system as is. The truth is that far from it being necessary to encourage people to invent, you can't stop people inventing! They'll do it regardless of whether they're sitting on billion-dollar ideas or just a better left-handed cheese grater. They're inventing and improving and thinking of new ideas all the time. And there are plenty of examples of patents not stopping infringement, and plenty of examples of companies with lots of money just steamrollering the "home inventor" regardless of the validity of their patents. Most of the "poster children" for the "home inventor" myth are now running patent troll companies. Nothing in the patent system is necessary for people to invent, and its actual objectives do not meet with the current reality.

I love watching companies like Microsoft and Apple get hit with patent lawsuits, especially by patent trolls, because they have to sit there with a stupid grin on their face and still admit that the system that is screwing billions of dollars in damages out of them is the one they also support because of their belief that patents actually have value.

So introducing some actual utility into the patent system should be a good thing, yeah?

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