For all the talk about how ridiculous our patent system has become, there's almost no downside to those who file bad patents. That only makes the incentive such that people are told to file as many patents as possible, effectively overwhelming the system. Bruce Perens, in a talk today, brought up one potential solution which I've heard mentioned in the past -- but which is almost always laughed off. That's the idea that perjury charges should be filed against those who file obviously bad patents. The thinking is that when you submit a patent, you are swearing an oath, and if you've purposely ignored prior art or purposely filed for a questionable patent, it could reasonably be argued that you've committed perjury. In fact, there have been patent perjury cases, but they're extremely rare. Perens believes that putting the risk of criminal perjury charges for bad patents could make some filers think twice. It's an intriguing idea mostly because there really is no downside these days to filing ridiculous patents (other than the filing fees). With the upside being so ridiculously high, it's often well worth the filing fees. However, criminal perjury charges perhaps goes too far. First, it changes the game midstream without any sort of official review or notice -- which isn't fair to anyone. Second, it would be quite difficult to prove actual perjury for a bad patent. Finally, criminal charges seem a bit strong for such a thing. Either way, it is worth thinking about more effective ways to discourage the filing of such bad patents.
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