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Patents The Courts

Champerty and Other Common Law We Could Use Today 158

pevans writes "Over on Red Hat's I found this neat summary of a few old laws that could really help us today with the patent trolls. The article 'What's wrong with champerty?' is brief, but full of legal goodness that seems to have fallen by the wayside: 'Let's bring back barratry, maintenance, and champerty for patent lawsuits. Combine that with a limitation on the assignment of patents and a lot of patent trolls would be out of business. patents have to be freely assignable? And why can't we prohibit a cause of action for patent infringement where there is no net gain to society?"
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Champerty and Other Common Law We Could Use Today

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  • Trial By Combat! (Score:3, Insightful)

    by Greyfox ( 87712 ) on Wednesday January 27, 2010 @03:21AM (#30914396) Homepage Journal
    I shall ready the trebuchet!
  • No, no, no. (Score:5, Insightful)

    by Jurily ( 900488 ) <<moc.liamg> <ta> <yliruj>> on Wednesday January 27, 2010 @03:23AM (#30914400)

    What you need is to make sane fucking laws, not apply laws from before the wheel to the age of the internet. That's what got us in this mess in the first place.

    What next? Stoning girls because they weren't virgins on their wedding?

  • by Anonymous Coward on Wednesday January 27, 2010 @03:33AM (#30914436)
    The patent system is for one thing only. To aid innovation.

    If the patent system doesn't aid innovation it fails its own raison d'être.
    If a part of the patent system doesn't aid innovation that part fails and should be removed.
  • by Anonymous Coward on Wednesday January 27, 2010 @03:39AM (#30914462)

    Patents and copyrights are both immoral protection rackets designed to hide information and make the rich richer. They stall human progress rather than help it. They will inevitably be removed. The only question is: How long will we wait?

  • by Lunix Nutcase ( 1092239 ) on Wednesday January 27, 2010 @03:48AM (#30914486)

    So then you have no problems with people ignoring the copyrights on all GPLed code, thus negating any enforcement of the software license, no? Those copyrights to GPL code are doing nothing but hiding information and making the rich richer, right?

  • by Anonymous Coward on Wednesday January 27, 2010 @04:06AM (#30914540)

    Question: Why can't we prohibit a cause of action for patent infringement where there is no net gain to society?
    Answer: Because who is going to decide what constitutes a net gain for society? The government (Big Brother sends his regard)? A board of community leaders (who will be on the payroll of the big corporations in no time)? Judges (the same ones who make a mess of patent claims now)? That way madness lies ...

  • by bzipitidoo ( 647217 ) <> on Wednesday January 27, 2010 @04:17AM (#30914570) Journal

    If there was no copyright or patent law, there would be no need for the GPL. The whole point of the GPL is to stop businesses from locking up or "paywalling" software via copyright and patent law. True, they might try modifying freely available software and not sharing those modifications. Copyright law is used to force them to share, and that "viral" aspect wouldn't work without copyright. But copyright is hardly the only way to ensure reciprocity. There'd be other ways.

  • by u38cg ( 607297 ) <> on Wednesday January 27, 2010 @04:28AM (#30914610) Homepage
    What about the capital they invested? Or is it OK just to take that off them?
  • by DrSkwid ( 118965 ) on Wednesday January 27, 2010 @04:55AM (#30914690) Homepage Journal

    Go on then, write that law for us to see.

  • mr_matticus closed by saying: But there is no way you can say with a straight face that on balance, these systems have not been wildly successful at encouraging investment in R&D, proliferation of art, and consumer access. At no other time in human history has so much been available to so many. Whining about the tiny fraction of extremely popular works that can afford to be highly selective about transactional terms is no way to suggest such an argument.

    I'll agree that the parent post may have been going a bit over the top. So, I'll attempt to focus on some specific issues:

    1) Getting a Patent: There's evidence that the USPTO isn't doing its job at examining patent applications. There are a slew of Federal regulatory services that have been suffering for years from inadequate staffing, the USPTO being one. This seems to be manifesting itself in the examiners not having time to spot a lot of obvious or non-original work. Hence, the icon for many of the /. patent-related stories.

    2) Holding Patents: The original intent of the framers when setting up patent law was that inventors enjoy a limited window of time to enjoy the fruits of their inventions via a monopoly granted by the state. IANAL, but baring someone pointing out long established case law to the contrary, I'd bet money that the framers didn't foresee and would have legislated against "patent trolls".

    Pray tell, what does it gain society to permit a business whose sole purpose is to quietly sit on patents in the hope that they don't turn up during a patent search, waiting to jump on the next goat who makes an actual product that might conceivably infringe? This business method is aided and abetted by 1).

  • by Anonymous Coward on Wednesday January 27, 2010 @06:34AM (#30915076)

    This would cut down on teen pregnancy, abortion, children growing up in broken families, STDs, and so much more.

    I honestly can't tell if you're joking, but let's examine this statement a little more closely rather than blithely passing it off as fact...

    Cut down on teen pregnancy. Yes, because teens have time and time again proven that they carefully consider the consequences of their actions in advance (and of course this assumes they never do anything silly while experimenting with drink or drugs).

    Cut down on abortion. This assumes that the first point works, otherwise it might actually increase abortion. It's a relatively simple operation now for a woman to have her hymen restored to fake virginity, it's a little harder to hide the fact that you have a child out of wedlock - if you tell people they're going to be stoned to death if they happen to be single mothers you're going to see a net increase in abortions. You also have the tricky situation that the woman might be pregnant. Do you kill her and the unborn child, or do you wait until the child is born, then kill her, and if so, how does this fit into the next point...

    Cut down on broken families - aside from what you do with all the semi-orphans created from your previous point, this has some pretty flawed assumptions, firstly that a man and woman can't have a happy relationship unless the woman is a virgin when they meet, secondly that a couple who stay together but are deeply unhappy, or the relationship is violent, aren't also a "broken" family and finally that couples value sex so highly they will stay together even if they are deeply unhappy just because the woman can't remarry if either of them leaves (you didn't preclude them splitting up or getting divorced after all).

    STDs - of course, if women are virgins at their weddings, nobody will ever have affairs or sleep with prostitutes ever again.

    The fact is we can look at recent historical (and even in some cases current) evidence of societies which enact what you condone here and we can see that all that really happens is that the death rate of young women is much higher, none of the other issues are ever really solved.

  • by delinear ( 991444 ) on Wednesday January 27, 2010 @06:43AM (#30915110)
    In this case the innovation involves a lot of waste effort circumventing overly restrictive legal practice when it could instead be innovation which benefits everyone directly.
  • by edittard ( 805475 ) on Wednesday January 27, 2010 @06:55AM (#30915164)
    The resources you spend on unnecessary innovation - working round the patent - could be spent on useful innovation - creating something new or better.
  • by GospelHead821 ( 466923 ) on Wednesday January 27, 2010 @08:43AM (#30915816)

    Even besides contract killing, there are other forms of contract crime. Could I pay neighborhood kids a pittance to shoplift for me? Are protection rackets and blackmail now legal? Organized crime is a lot like a business that happens to be engaged in illegal services. What happens when the guy with the money all of a sudden bears no legal responsibility for the crimes from which he profits?

  • Re:No, no, no. (Score:5, Insightful)

    by hey! ( 33014 ) on Wednesday January 27, 2010 @09:04AM (#30915966) Homepage Journal

    You voice my objections to the article better than I could.

    That said, what we are talking about is a phenomenon where the abolition of one class of legal abuse tends to lead to another, new class of abuse. As long as there is law and there are people with money interested in subverting the law for their own purposes, you'll have new abuses dreamed up by creative and unscrupulous lawyers.

    So this is not a matter of getting the law right, but keeping up with the development of novel abuses.

    We needn't resurrect the doctrine of champetry wholesale as it existed a century ago to address the most flagrantly abusive forms of maintenance. The problem with champetry is that it assumes that because contingency fees create an incentive to maintain frivolous lawsuits, that any lawsuit undertaken by a lawyer with a contingency fee is necessarily frivolous. That's only true if we assume that substantive lawsuits are brought exclusively by gentleman of means.

    The real problem is not the fee arrangements, but the use of law to obtain plaintiffs privileges beyond what the law grants them. It is the use of the law to undermine the rational basis of the law.

    So the point the article makes is better than it appears. Patent trolls use the law to redress injuries that would not exist were it not possible to obtain "relief" through the courts. This is not the case for patent holders who produce actual products using the patents, because infringers take money away from the patent holder's business. Patent trolls have no revenue or prospect of revenue save what they can obtain through lawsuits. Therefore the "injury" they suffer by infringement is a legal fiction.

  • Re:No, no, no. (Score:2, Insightful)

    by Mr. Slippery ( 47854 ) <{tms} {at} {}> on Wednesday January 27, 2010 @11:10AM (#30917518) Homepage

    Nowadays, in a state ruled by representatives of the citizenry for the citizenry...

    See, that's the problem. We don't have that. If we did, we wouldn't have the patent system that we do. What we have is a state ruled by representatives of big businesses for big businesses.

    We need some sort of controls on barratry, not just to fight patent trolls but to stop SLAPPs [].

  • by Grond ( 15515 ) on Wednesday January 27, 2010 @11:49AM (#30918164) Homepage

    The article was written in a very superficial way. The author avoids going into detail on how her proposed solution would be implemented and why it would not have negative side effects. I suspect she has not actually thought very deeply about the problem or her solution.

    But do patents have to be freely assignable?

    Patents are personal property--and thus freely assignable--by statute. 35 U.S.C. 261 []. Assignability is also guaranteed by Article 28 of the TRIPS Agreement [], which is a treaty that the US is party to. So changing the assignability of patents would require amending the law and withdrawing from or amending a very important international treaty.

    And even if it were changed, it would mean that hundreds of patent holding companies would suddenly lose their patent rights because of an action by the government. Other patent holders would lose their right to freely assign their patents. That's called a taking, and the ex-patent holders and patent holders whose patents lost value because of the restriction would be able to sue the government for the value of the patents. It would be a massive litigation and cost the tax payer an enormous amount of money.

    But anyway, how does she suggest we restrict the assignability of patents? We could require that they only be assigned to an entity that intended to practice the invention. Sounds great, right? No more patent holding companies, therefore no more trolls. There are at least five big problems with that:

    1. Not all patents can be freely practiced because of other patents surrounding the technology. Imagine I own a startup company. If I invent a new transistor design I can't be expected to practice it myself: other companies have patents on things like manufacturing processes, bus designs, chip packaging, etc. I would have to license dozens of other patents in order to sell chips with my new transistor design. But that's backwards. Instead, I should license my one patent to companies like Intel and AMD and let them do the manufacturing and sales. But a requirement to practice means I couldn't do that; I'd have to practice it myself.

    2. And what about pure research institutions like universities? They can't be expected to also become manufacturers.

    3. But suppose we say it's worth making universities sell their patents. Well, now since they have to sell the patent only a single entity will get the rights. It can no longer stay with the university and be licensed to whoever will pay the fee. The end result is less competition in the market place for the finished product.

    4. Okay, suppose we say that it's sufficient that the patent owner license the patent to at least one entity that is going to practice it. But then the law is too narrow. Almost no patent trolls actually rely on litigation damages for income; it's too uncertain and the margins are too narrow and often negative. Litigation is just a tool to extract a licensing fee. So the end result is that the trolls can point to a manufacturer who licenses the patent and nothing changes.

    5. What about patents on technologies that are ahead of their time? For example, suppose I invented an amazing new transistor design. It will make computers much faster but it requires X-ray lithography in order to work. Well, X-ray lithography is not cost-effective yet, so I can't really practice my invention. Does my patent just evaporate? How does that spur innovation?

    So the author has carefully avoided actually explaining how her solution would be implemented and how it would be narrow enough not to have side effects yet broad enough to be effective yet not invite more litigation or government regulation.

    Trademark law dealt with a similar problem, a worry about trafficking in intent-to-use trademark applications, and solved it by forbidding the assignment of them "e

  • Re:No, no, no. (Score:3, Insightful)

    by Ungrounded Lightning ( 62228 ) on Wednesday January 27, 2010 @06:55PM (#30926734) Journal

    (Much as I hate to do anything that might appear to support patent trolls ...)

    Patent trolls use the law to redress injuries that would not exist were it not possible to obtain "relief" through the courts. This is not the case for patent holders who produce actual products using the patents, because infringers take money away from the patent holder's business. Patent trolls have no revenue or prospect of revenue save what they can obtain through lawsuits. Therefore the "injury" they suffer by infringement is a legal fiction.

    Infringement of a patent while the patent holder is trying to arrange to put the invention into production is also a real injury, with real damages to real inventors / patent holders. Perhaps it's an even larger one than infringement when a patent holder has already gotten over the hump and into production - because it cuts off his opportunity to exploit his invention at all, hits him when he's weak and resource poor, and when he has a hard time demonstrating the damage because he doesn't have a track record of building a profitable product.

    The difference between a real inventor trying to exploit an invention and a patent troll is solely a matter of intent: Does the plaintiff intend to actually exploit the invention or license it to others to do so? Or does he intend solely to wait until others re-invent and exploit the invention, then extort them? The latter is "rent-seeking behavior" and well recognized by economists as a bad thing. But the law doesn't currently distinguish the two cases and would have a hard time doing so if the legislatures and courts tried.

  • by Anonymous Coward on Wednesday January 27, 2010 @08:28PM (#30927884)
    false dichotomy. I support neither the murder of fetuses nor the doctors that commit the act. I do support changing the law and would like to see murder trials of said doctors, but I don't condone vigilantism.

    Shall we look at your world view with the same disdain you consider that of others? There are a bunch of people that think that fetuses aren't people and can be destroyed at will. They're also the ones that believe that eugenics, the extinction of "inferior" people, is an admirable goal. Margaret Sanger, the founder of Planned Parenthood, advocated abortion as a means of eugenics and is worshiped as a hero by that side...

I was playing poker the other night... with Tarot cards. I got a full house and 4 people died. -- Steven Wright