Subject: Re: patent trolls and X-licensors
From: Thomas Lord <lord@emf.net>
Date: Sat, 03 Jun 2006 09:17:33 -0700

Perhaps we could fix the US patent system this way:

Suppose that party X holds a patent.   They believe
that party Y has violated the patent.   No alleged
violation similar to party Y has yet taken place: Y
is the first.

X may not take Y directly to court.

X may not even immediately demand that Y
pay up or cease and desist.   If fact, if X goes
directly to sending a C&D letter or anything
similar, X's patent is automatically invalidated
by a simple court filing from Y.

X is permitted exactly one option as a first
step:  they must establish evidence that their
complaint against Y has substantial merit.

By law, the nature of that evidence must be
highly constrained.

First, the evidence must come in the form of
a sworn statement by neutral third parties with
relevant domain expertise.   (Regulatory
constraints may limit which third parties are
acceptable here.)

Second, those third parties must consider and
attest to the authentic originality of the patent.

Third, those third parties must consider and attest
to the appropriateness of attending the scope of
X's claim to Y's activities.  If X's own diligent
practice of the patent's claims is not genuinely
harmed by Y's activities, then Y's activities do not
fall under the scope of X's claims.

Fourth, those third parties must consider and attest
to X's diligent practice of the patent.   Having
established that the patent is original, and that Y's
use conflicts with uses X has attempted, the third
party must affirm that, were it not for Y (and other
infringers), X or X's real (not theoretical) agents
would be doing something like what Y is doing.

Fifth, Y must be informed at the outset that the
third party has been asked to make these judgements
and must be invited to submit comments to the
process.  If the third party finds against X, X must
pay a penalty fee to Y.

Sixth, X's fee to the third party must be the same
regardless of finding.

Seventh, we encourage a competitive market of
these third parties.  If X's patent is first reinforced
by their third party, Y may seek the help of
competing third parties who will make a compelling
case to the contrary.   If Y successfully challenges
the findings in court, or if X withdraws the findings,
X must pay for all of Y's experts and pay an additional
fine to Y.

The upshot of all of this is, alas to raise the cost
of patents -- though for good patents it should not
be much of an increase.

Additionally, it leaves the patent office in its current
role of issuing patents on the basis of *plausibility* --
PTO remains basically a *registration* office, not
an adjudication office.

-t