[Patents] Possible Patent Solutions.

[Nick Fleming marmalade@x-stream.co.uk]

Dear All,
 Below, I present a possible solution, or
at least part of the solution for resolving the
current problems surrounding software patents.

First, I would like to make it clear that I am
totally oppossed to patents on software, because
of the negative effect they have on everyone
both economically and socially. However I accept
that there are those who will not accept this
view no matter how well I present my case, so
the following suggestions should be taken as a
reasonable compromise for all parties involved.

I started thinking about Patent Pools originally,
and they are a good idea - as long as patents
are never removed from the pool, and as long
as every one in the pool TAKES someone elses patent.
You can't just sit in the pool and then withdraw
when you feel like it. For an example, if 
Microsoft joined, and everyone started to use their
patents in the pool, but they never used anyone
elses, they could withdraw at some unspecified date
and sue the pants off everyone.

 Patent pools are excellent, although expensive
initial defence against aggressive patent holders
 as a whole.

 Then I started thinking about free software,
and the best defense - the only defense - against
patents is prior art. AS well as patenting software
as a defense, people should arm themselves with
published works - such as books and magazines in
order to build up a prior art database of freely
usable software / algorithms etc. Because of the
scale of free software development on the net, this
would equate to a very real, very effective body
of work that could be used against patent holders,
and also compliment the patent offices own database
which is still fairly immature as far as software
patents are concerned.

 A database of expired patents would also
be very handy - I don't believe IBM keeps expired
patents on its database - does it ?

 I then remembered something I read about IBMs
anti-trust cases and how you could buy their entire
patented technology for a set fee. If you turn it on
its head slightly, you get the following ideas:

 Patents : A Possible solution ?
---------------------------------

1) A company can only take legal action against
 another for ONE patent, per application that
 another company owns NO MATTER HOW MANY
 PATENTS they infringe on.

 Think about this for a minute, because the
 benefits to everyone are not obvious (IMHO).

 (i) For the little guy, this means that
  IBM can only sue you on a per application
  basis- not per patent. And then, they
  should only be able to demand a reasonable
  royalty - nothing more. (No backpayments
  either).

 (ii) For Giants like IBM, this would mean that
  their income from patents would actually
  go UP. Why ? Because of the lower threat
  to being sued off the face of the earth,
  more developers would start using their
  technology hence, more royalties. As a
  famous supermarket owner once said :
  "pile it high, sell it cheap"
  If all I had to do was pay a 10p royalty
  to IBM for every unit I sold - seems fine
  to me..

 (iii) You can innovate freely, knowing that your
  legal costs will be minimal.

 (iv) It scales well. The larger the project, the
  more chance of infringement BUT only one
  patent fee, rather than dozens from each
  company.

I can only think of one flaw in this, but it does explain
why IBM patents everything in sight. If you infringe on a
number of patents held by a LOT of companies THEN it gets
expensive. IBM's response to this (being sued by everyone)
is to patent like mad in order to overcome being sued every
working day.

IBM are actually doing us all a long-term favour, strange
as it seems. By patenting everything, it will all be
public domain in twenty years time - earlier if they forget
to renew patent licences. 

2) The second idea is a change to the way the system
 of paying for patent licences is done. Instead of
 a variable fee (a reasonable royalty) determined
 who knows how, the fee should be taken as a
 FIXED percentage of a businesses PROFITS. (The
 percentage amount should be fixed when the patent
 is issued to prevent perceived unfair price rises
 such as the GIF licencing problems).

 By only targeting profit making companies,
 free software, the public and non-profit organisations
 will be able to continue as before. This is an
 important point, to preserve the publics freedoms
 and also, to allow the useful development of free
 software to continue.

Thats all. I hope its provided some food for thought.

Regards, 

Nick F.