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

from the it's-a-start dept

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.

Filed Under: patent pledge, patents

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  1. icon
    Stephan Kinsella (profile), 2 Sep 2011 @ 5:35am

    A Patent Defense League


    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 ďA 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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