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Champerty and Other Common Law We Could Use Today

kdawson posted more than 4 years ago | from the officious-intermeddling dept.

Patents 158

pevans writes "Over on Red Hat's Opensource.com 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. ...do 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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158 comments

Let's bring back barratry... (0, Offtopic)

hoytak (1148181) | more than 4 years ago | (#30914392)

That's what she said!

Re:Let's bring back barratry... (-1, Flamebait)

Anonymous Coward | more than 4 years ago | (#30914476)

Shut the fuck up you nigger-kike faggot.

Trial By Combat! (2, Insightful)

Greyfox (87712) | more than 4 years ago | (#30914396)

I shall ready the trebuchet!

Re:Trial By Combat! (3, Interesting)

Ihmhi (1206036) | more than 4 years ago | (#30914818)

I'd be perfectly fine with legalized dueling so long as there were set rules and the major players were above the age of 18 and mentally fit.

If things get bad enough that you would want to kill someone, as it stands now the attacker might miss a few times with his handgun and hit innocent bystanders. At least it would remove that risk to a degree.

Makes me wonder if any of the states with their silly old archaic laws still have a dueling law on the books.

Re:Trial By Combat! (5, Funny)

PopeRatzo (965947) | more than 4 years ago | (#30915344)

I'd be perfectly fine with legalized dueling so long as there were set rules and the major players were above the age of 18

Typical secular left opinion.

Since fetuses and corporations are people, they should be allowed to duel, too.

Re:Trial By Combat! (1, Funny)

Anonymous Coward | more than 4 years ago | (#30916806)

Since fetuses and corporations are people, they should be allowed to duel, too.

That's only fair, since they have to register with Selective Service. If they can die for their country, they can die for a maid's honor.

legal goodness? (0)

Anonymous Coward | more than 4 years ago | (#30917412)

My head asplode.

fetuses aren't legally people (0)

Anonymous Coward | more than 4 years ago | (#30917460)

If fetuses were legally people, abortion would be tried as murder.

Though I do have to admit I have heard cases of murdering pregnant women counting as two murders, I guess maybe they are only people if it is suspected the mother wants the fetus to count as a person.

Re:Trial By Combat! (1)

MozeeToby (1163751) | more than 4 years ago | (#30917596)

Didn't Accelerando have 'deuling' for corporations to settle disputes? Where the duel was a competition set up by the judge to determine which corporation was best for the economy. If I remember right the example in the book was which corp could set up the best trade agreement with the newly contacted aliens.

Re:Trial By Combat! (1)

dpilot (134227) | more than 4 years ago | (#30918248)

Show me where to shoot a corporation to get a clean (maybe even messy) kill, and I'm with you.

If the Supreme Court declared corporations to be persons in the early 1900s, why has the death penalty never been handed down to one, in the time since? Are they really that much better "people" than flesh-and-blood "people", that much more moral? It's also interesting that in Asimov's original, "The Bicentennial Man" that the robot wasn't granted his "humanity" until he'd sufficiently improved his system that he was going to die.

The only 2 corporate "deaths" I can think of in recent history that were connected with crimes are Enron and the (name forgotten) auditing firm. While government disapproval lead to their deaths in the marketplace, neither was "dechartered", the truer equivalent of the death penalty.

Re:Trial By Combat! (1)

EatHam (597465) | more than 4 years ago | (#30915734)

I'd be perfectly fine with legalized dueling so long as there were set rules and the major players were above the age of 18 and mentally fit.

It'd make the legal profession far more interesting if professional arguers were replaced with professional duelers.

Re:Trial By Combat! (0)

Anonymous Coward | more than 4 years ago | (#30916364)

You might want to read K. J. Parker's book 'Colours in the Steel' The main character is a fencer-at-law - exactly what you suggested.

Re:Trial By Combat! (1)

Oddscurity (1035974) | more than 4 years ago | (#30916960)

I'm trying to wrap my head around what would then be an offshoot of that: gang dueling. At best it's an oxymoron, at worst it's an Erol Flynn movie.

Drive-by dueling, would that then be akin to jousting?

Re:Trial By Combat! (1)

bofkentucky (555107) | more than 4 years ago | (#30916976)

Elected officials in Kentucky have to swear as part of their oath of office that they have never participated in a duel.

Re:Trial By Combat! (0)

Anonymous Coward | more than 4 years ago | (#30914960)

Comic Sans FTW!

Re:Trial By Combat! (4, Funny)

plover (150551) | more than 4 years ago | (#30915766)

I shall ready the trebuchet!

Then I shall fetch thee a lawyer, that thou may'st have ammunition.

No, no, no. (4, Insightful)

Jurily (900488) | more than 4 years ago | (#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?

Re:No, no, no. (5, Informative)

Calinous (985536) | more than 4 years ago | (#30914416)

Those laws were applicable in the 1916.
      As for the reasoning behind those laws, remember that the judicial system is paid from the country's budget, not by the legal taxes - so, indirectly, you pay for every case that goes to the judge. And, because of those lots and lots of cases that drag for a long time, your own case might take months and months or years and years.

Re:No, no, no. (0, Troll)

Cryacin (657549) | more than 4 years ago | (#30914460)

Unfortunately, who's pockets can you use to bribe congressmen to make that come to light?

If pro is opposite of con, then logically what is the opposite of progress?

Re:No, no, no. (5, Funny)

BlackHawk-666 (560896) | more than 4 years ago | (#30914474)

I'm quite fond of stoned girls who aren't virgins.

yummy (0)

Anonymous Coward | more than 4 years ago | (#30915446)

heres to my hot undersexed blond mechanic Norwegian neighbour Souvi who came round for help setting up her dvd player (yeah right :P) so she could watch some porn. just happened to have a nice 1/4 oz of tight budzskis. they are a beautiful race. ive been overseas in Canada skiing and saw what was probably the most beautiful woman i'll ever see in my life (also a traveler, from northern europe)

lol the captcha was ensnares

Re:No, no, no. (5, Informative)

Capsaicin (412918) | more than 4 years ago | (#30914524)

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.

No what got us into this mess in the first place was not applying tried and true law, but instead being stampeded into enacting new law because "oooooh it's the internet ... we need neeewwwww laws (that'll make a motza for the people I work for)." Take copyright and other so-called IP law back 25-50 years and we'd be in a much better position.

That being said, the issues surrounding maintainance and champerty (which makes working on a contingency fee basis impossible) are a little more complicated. In my jurisdiction (NSW.au) these were still torts until 1993 when the Maitainance, Champerty and Barratry Abolition Act 1993 (NSW), was passed. Until then it was difficult for ordinary people to defend their legal rights as the cost of litigation (the ultimate threat) would be prohibitive. So these torts acted in a highly anti-democratic fashion.

OTOH after the Act was passed the amount if litigation obviously increased. And it increased to the point where it was felt necessary to curtail the remedies available to individuals (via the Civil Liability Act 2002 (NSW)). So the abolition of these torts ultimately acted to reduce an individual's rights. Also it made lawyers unpopular as happens when a people becomes more litigious.

Difficult.

Re:No, no, no. (1)

Jurily (900488) | more than 4 years ago | (#30914716)

the cost of litigation (the ultimate threat)

And there we have the main problem with the legal system today.

Re:No, no, no. (4, Informative)

cthugha (185672) | more than 4 years ago | (#30914772)

Contingency fee arrangement of the "no win, no fee" variety are not champertous, and have always been allowed in Queensland (my home jurisdiction) were champerty was not abolished as it was elsewhere in the Commonwealth. What is prohibited as champertous are fee arrangements under which lawyers' fees are calculated as a percentage of the final award in a proceeding. It's a fine line, but that's what comes out of the cases.

I'm not sure of the precise historical reasons for the abolition of these torts in New South Wales, but I note that they also create difficulties for types of litigation funding that are considered legitimate, e.g. funding by public interest groups or unions. IIRC, union lobbying was behind much of the Victorian Wrongs Act, which (in its original form) abolished maintenance and champerty in that State as well as making a whole load of other changes in relation to civil liability for negligence and personal injury.

Re:No, no, no. (1)

GospelHead821 (466923) | more than 4 years ago | (#30915694)

I'm curious. Does a "not to exceed" clause violate the law? Say a client and lawyer agree on a fee of $1000 but the jury awards the client just $500. Is it acceptable for the agreement to be "$1000, but not to exceed the awarded damages?"

Re:No, no, no. (1)

Tanktalus (794810) | more than 4 years ago | (#30917450)

"My fees will be $10m, but not to exceed 40% of awarded damages." "But, but ... we're only suing for $1m?"

Something tells me lawyers would find a loophole on that before it was ever proposed.

Re:No, no, no. (5, Informative)

Anonymous Coward | more than 4 years ago | (#30914568)

I agree. What the article fails to mention is why these principles have fallen by the wayside.
1) Barratry allows the state to punish you if you start a court case. The criteria are vague, but generally come down to litigating too much. This can be a problem if for example a citizen is getting repeatedly screwed over by some other citizen, company, organization or even the state. As is clear even from the wording of the law, it wasn't designed to uphold justice, the nod at the end notwithstanding, but to keep things quiet, which was in the best interest of the king. Nowadays, in a state ruled by representatives of the citizenry for the citizenry, rather than by the king for the king, the principle of barratry has no place.
2) Maintenance (and thus champetry) makes it impossible for charities to for example support people who are in a protracted legal battle with an organisation with much deeper pockets. Again, we can see that this is a very useful law for the aristocracy but not for the common people.
Both these principles were from a time when the single purpose of the law was to enforce stability, and where it served justice, it only did so as a means to that end. Although vestiges of that past are still visible in our laws today, the current attitude is that the law should provide justice and protection to the citizenry. If there are laws that don't serve this end* they should be changed or abolished.
*Previously on Slashdot:
UK Censorship: Demonic Consequences [slashdot.org]
In the UK, a Few Tweets Restore Freedom of Speech [slashdot.org]
A New Libel Defense In Canada; For Blogs Too [slashdot.org]
In Britain, Better Not Call It Bogus Science [slashdot.org]
And you can help make the world a better place: Libel Reform Campaign [libelreform.org]

Re:No, no, no. (0)

Anonymous Coward | more than 4 years ago | (#30915352)

Could this "maintenance" be used to, oh, I dunno...

Block the ACLU from assisting in a case involving detention in Guantanamo without charges?2

Re:No, no, no. (1)

One Monkey (1364919) | more than 4 years ago | (#30915798)

Both these principles were from a time when the single purpose of the law was to enforce stability... the current attitude is that the law should provide justice and protection to the citizenry

Someone needs to renew their cynicsm prescription. I've never regarded the former state of law to have expired nor the latter attitude to have stretched as far as the actual legal system.

Re:No, no, no. (4, Insightful)

hey! (33014) | more than 4 years ago | (#30915966)

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. (2, Insightful)

Mr. Slippery (47854) | more than 4 years ago | (#30917518)

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 [wikipedia.org].

Sometimes old is better (an example) (1, Offtopic)

piotru (124109) | more than 4 years ago | (#30914594)

Oh, don't forget that it was Clinton abolishing in the year 1999 a law from 1929 that had gotten US into the banking mess. Plus, creating innovative rules for mortgages...
Patents and Copyrights sole purpose is to enhance the society and this justification has to come back into consideration urgently.

Sure, but no reason to be sexist (3, Funny)

r00t (33219) | more than 4 years ago | (#30914650)

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

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

Modern science allows us to hunt down most of the guys too, so we don't have to be sexist. We can now get DNA just from a touch, and we can track tiny mutations in the microbes that people normally carry. Even a virus like HIV has mutations that can help lead back to the guilty party.

We can build a database with everybody's DNA signature in it, and soon we'll be able to do full sequences including microbes. We could use GPS tracking on everybody so that we can reduce the search space. We could even have chastity belts with tamper alarms, for both male and female (they can alert on proximity).

For the stoning itself, I think we should televize it live. We can auction off the right to throw the first stones, and we can sell tickets to throw the rest of the stones.

Re:Sure, but no reason to be sexist (4, Funny)

AliasMarlowe (1042386) | more than 4 years ago | (#30915036)

For the stoning itself, I think we should televize it live. We can auction off the right to throw the first stones, and we can sell tickets to throw the rest of the stones.

With a bonus extra stoning, if anyone says "Jehovah" during the show, or if a stone-thrower's beard falls off.

Re:Sure, but no reason to be sexist (0)

Anonymous Coward | more than 4 years ago | (#30916244)

OFFICIAL: I'm warning you. If you say Jehovah once more...

MRS. A. stones OFFICIAL

Right. Who threw that?

MATTHIAS: laughing

silence

OFFICIAL: Come on. Who threw that?

CROWD: She did! It was her! He! He. Him. Him. Him. Him. Him. Him.

OFFICIAL: Was it you?

MRS. A.: Yes.

OFFICIAL: Right!

MRS. A.: Well, you did say 'Jehovah'.

CROWD: Ah! Ooooh!...

CROWD stones MRS. A.

Re:Sure, but no reason to be sexist (1, Insightful)

Anonymous Coward | more than 4 years ago | (#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.

Regular modern restrictions would be fine. (3, Interesting)

Senes (928228) | more than 4 years ago | (#30914424)

All that needs to happen is to make it so people can't SPECIFICALLY claim property just for the sake of passive income. Reform the laws so that people can't cash in on something they did not contribute to, no more random lawsuits aimed at people who did all their own work to bring things into existence.

Re:Regular modern restrictions would be fine. (2, Insightful)

u38cg (607297) | more than 4 years ago | (#30914610)

What about the capital they invested? Or is it OK just to take that off them?

Re:Regular modern restrictions would be fine. (1)

bencoder (1197139) | more than 4 years ago | (#30914646)

that's different. Having money to purchase some capital, that money (presumably) came from production at some point, so assuming value for value, you could say they have contributed the same amount that the capital is "worth".

Re:Regular modern restrictions would be fine. (1)

ArsenneLupin (766289) | more than 4 years ago | (#30915040)

that's different. Having money to purchase some capital, that money (presumably) came from production at some point, so assuming value for value, you could say they have contributed the same amount that the capital is "worth".

Couldn't the same reasoning be used by patent trolls. After all, they purchased their patents with their "hard earned money", so they have contributed something to society too...

Re:Regular modern restrictions would be fine. (1)

bencoder (1197139) | more than 4 years ago | (#30915140)

I don't see patents as capital. They are restriction, essentially, having a patent is like "owning" a law restricting other people. The cost of gaining a patent is minimal and has no relation to the cost(or lack of cost) of producing the original item or idea.

your big chancego on then, write that law (2, Insightful)

DrSkwid (118965) | more than 4 years ago | (#30914690)

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

Re:your big chancego on then, write that law (0)

bencoder (1197139) | more than 4 years ago | (#30914854)

Can I make an attempt?

No laws shall be made nor enforced that restrict trade, in any way, of any good or service that can be offered.

Simple as that... it solves everything, does away with patents and copyrights and allows anyone to work their way from nothing, selling whatever there is demand for.

Re:your big chancego on then, write that law (1)

ArsenneLupin (766289) | more than 4 years ago | (#30915052)

Can I make an attempt?

No laws shall be made nor enforced that restrict trade, in any way, of any good or service that can be offered.

Simple as that... it solves everything, does away with patents and copyrights and allows anyone to work their way from nothing, selling whatever there is demand for.

So then, it will no longer be possible to forbid sale of too powerful weapons, spoiled food, unsafe toys, etc. either. Not good.

Re:your big chancego on then, write that law (0)

bencoder (1197139) | more than 4 years ago | (#30915120)

So then, it will no longer be possible to forbid sale of too powerful weapons, spoiled food, unsafe toys, etc. either. Not good.

Yes, that's correct. And that's a good thing in my opinion. What's the point of a weapon if the opponent you need it to defend yourself from is able to get a more powerful weapon illegally?

Unsafe toys and spoiled food don't get discovered until they are already out in the wild, even under your system of laws and restrictions. Any response to that is basically going to be the same whether you then "Ban" the sale of that item or not. Media is interested in these stories and so people will find out. It's very likely that in order to keep customers, the companies responsible will withdraw the products and if they don't then the company will fail.

Re:your big chancego on then, write that law (1)

delinear (991444) | more than 4 years ago | (#30915092)

And as a bonus, your law just legalised contract killing, prostitution, drug dealing, etc...

Re:your big chancego on then, write that law (1)

bencoder (1197139) | more than 4 years ago | (#30915158)

And as a bonus, your law just legalised contract killing, prostitution, drug dealing, etc...

Oops, you're right about the contract killing part. I guess in my mind the right to life comes before anything else and is an assumption I make without noticing. My error.

I have no problem with prostitution or drug dealing though.

Re:your big chancego on then, write that law (2, Insightful)

GospelHead821 (466923) | more than 4 years ago | (#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:your big chancego on then, write that law (1)

BarryJacobsen (526926) | more than 4 years ago | (#30916580)

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?

The police hire someone to make him reconsider?

Re:your big chancego on then, write that law (4, Funny)

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Re:Regular modern restrictions would be fine. (1)

julesh (229690) | more than 4 years ago | (#30914852)

Reform the laws so that people can't cash in on something they did not contribute to, no more random lawsuits aimed at people who did all their own work to bring things into existence.

So if I buy a house, I'm not allowed to rent it out? Or sue somebody who built their own house on my land, thus attempting to live off what I paid for fair-and-square?

Re:Regular modern restrictions would be fine. (2, Interesting)

Mr. Slippery (47854) | more than 4 years ago | (#30917658)

All that needs to happen is to make it so people can't SPECIFICALLY claim property just for the sake of passive income.

Exactly.

Of course, we also need to apply that to absentee landlords and absentee business investors. That pretty much destroys capitalism as we know it. I'm okay with that.

The patent system exists for aiding innovation (5, Insightful)

Anonymous Coward | more than 4 years ago | (#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.

Re:The patent system exists for aiding innovation (2, Interesting)

houghi (78078) | more than 4 years ago | (#30914452)

Logic overload. What will happen is that the raison d'être will change.

Re:The patent system exists for aiding innovation (1)

nedlohs (1335013) | more than 4 years ago | (#30914606)

That would require a constitutional amendment, which is a slightly higher bar than the average lawmaking or judicial action.

Re:The patent system exists for aiding innovation (4, Interesting)

starbugs (1670420) | more than 4 years ago | (#30914506)

Software patents stifle innovation [arstechnica.com].
Yet they are still around.

Many of us hate software patents [wikipedia.org]. (myself included).
They limit what we can do, so we have to find innovative [openbsd.org] ways to avoid them.
Meanwhile we are happy when some large companies [microsoft.com] get bitten by patents [zdnet.com].

Besides litigation, how do software patents benefit their holders?

Re:The patent system exists for aiding innovation (1)

sgrover (1167171) | more than 4 years ago | (#30914816)

Playing devils adovcate here... Your argument contradicts itslef. "Software patents stifle innovation", followed shortly later by "so we have to find innovative ways to avoid them". Which is it? I agree with your sentiment that software patents do not work. But we need to be clear and concise in our arguments against it. Unless you are a lawyer, I guess.

Re:The patent system exists for aiding innovation (4, Insightful)

delinear (991444) | more than 4 years ago | (#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.

Re:The patent system exists for aiding innovation (4, Insightful)

edittard (805475) | more than 4 years ago | (#30915164)

The resources you spend on unnecessary innovation - working round the patent - could be spent on useful innovation - creating something new or better.

Re:The patent system exists for aiding innovation (1)

syousef (465911) | more than 4 years ago | (#30914842)

They limit what we can do, so we have to find innovative [openbsd.org] ways to avoid them.

Innovative!? Quick, patent the technique!!!

Re:The patent system exists for aiding innovation (0)

Anonymous Coward | more than 4 years ago | (#30915678)

Well, Blockbuster Drugs/Phama has declined as no-one wants to co-operate or share research - or do research where litigation may be a problem. Sure - they publish so as to block others.
Other areas - can prove failing - but not a sniff of honest reform going on.

Re:The patent system exists for aiding innovation (1)

dpilot (134227) | more than 4 years ago | (#30918336)

You're living in the past. That's why both patents and copyrights were conceived in the Constitution.

I fear that has little to do with why patents and copyrights are around now - especially copyrights. I'll be curious to see how patent law is tweaked, so that patents can continue to be a barrier-to-entry, yet get rid of patent trolls.

Lets not pussyfoot around (5, Insightful)

Anonymous Coward | more than 4 years ago | (#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?

Re:Lets not pussyfoot around (1, Insightful)

Lunix Nutcase (1092239) | more than 4 years ago | (#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?

Re:Lets not pussyfoot around (2, Insightful)

bzipitidoo (647217) | more than 4 years ago | (#30914570)

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.

Re:Lets not pussyfoot around (2, Interesting)

DrSkwid (118965) | more than 4 years ago | (#30914700)

I sure do hate all those paywalled BSD systems

Re:Lets not pussyfoot around (2, Interesting)

WiseWeasel (92224) | more than 4 years ago | (#30914906)

Oh, c'mon! At least give Jobs the chance to show you the Jesus pad before you start hatin'...

Re:Lets not pussyfoot around (0, Flamebait)

BitZtream (692029) | more than 4 years ago | (#30914510)

I agree, copyright and patents are immoral, thats why I have no problem including GPL code in my closed source projects ...

Okay okay, back to reality ...

I think you need to go figure out what immoral means.

Re:Lets not pussyfoot around (4, Informative)

starbugs (1670420) | more than 4 years ago | (#30914542)

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.

Hmmmm...

The disclosure requirement lies at the heart and origin of patent law. A state or government grants an inventor, or the inventor's assignee, a monopoly for a given period of time in exchange for the inventor disclosing to the public how to make or practice his or her invention.

src [wikipedia.org]

So the idea of patents was so that there would be fewer trade secrets. At least that was before information traveled at the speed of light.

Re:Lets not pussyfoot around (2, Interesting)

mr_matticus (928346) | more than 4 years ago | (#30914592)

Not fewer trade secrets, but a strong economic incentive to elect full disclosure, without the competitive disadvantage that comes with it. Trade secrets actually have become more pervasive as the patent system progressed, because companies have specifically elected against public disclosure.

Patents help inventors who do not want to jump through the hoops of trade secret protection but also do not want to give away their hard (and often expensive) work. The statutory schemes primarily help smaller players, since the large corporations can afford the contractual and transactional licensing work to ensure that their products remain their products, even in the absence of statutory patent and copyright law. On the other hand, smaller inventors can rely on the basics of that work being put forth by the government--lowering costs significantly.

Same deal, roughly, with copyrights. It facilitated broad access to creative works without giving away the store, as it were.

Both systems have problems, but both also work remarkably well and with a great deal of flexibility. Patent and copyright holders have a great deal of choice in how to weigh the balances, exactly as it should be. Some patents are licensed royalty-free; some copyrights are voluntarily abandoned or licensed in a permissive style (e.g. BSD, GPL). Other choose to exercise more control because they can afford to.

The problem isn't the system; the problem is that like so many other things, market forces don't really interact well with certain social values. Microsoft would go open source in a heartbeat if it meant greater profitability; it's just that there's no economic incentive for voluntarily lowering the bar.

Now you could say that patent or copyright protection could be extended for those who choose to license in a royalty-free manner. That would provide some downward pressure on prices and proscriptive licensing. You could offer other perks, such as a damage multiplier in infringement cases, such that EFF lawyers and open source projects would earn greater protection.

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.

The Problem Discussed Lies With The USPTO (4, Insightful)

cmholm (69081) | more than 4 years ago | (#30914734)

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).

Re:The Problem Discussed Lies With The USPTO (1)

mr_matticus (928346) | more than 4 years ago | (#30914954)

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.

It's no secret that the Patent Office is badly understaffed. That's not a systemic flaw (at least in the patent system), it's a flaw in public priorities and government spending.

This seems to be manifesting itself in the examiners not having time to spot a lot of obvious or non-original work.

While it's true that a lower workload would result in more time per application, there are two major problems with the presentation of this point on Slashdot:

1. "Novel" and "Non-obvious" are grossly mischaracterized and misunderstood by the overwhelming majority of posters, with the particular point being what portions of the application must demonstrate these two elements and what the requirements for each are. The abstract, summary, or title will often state the invention in fairly "obvious" terms--by design. The actual invention is disclosed in the claims and the specification, and most of the patent stories around here gloss past that part for ad revenue and cheap laughs. Many patents presented here actually deal with the existing art in the specification.

2. It is not the function of a patent examiner to conclude that the patent works. There is no way to have a fully versed office, conversant in all applicable technologies and methods, nor is there any conclusive way to search and fulfill a negative proposition (that there is no disqualifying art in existence). It is the job of competitors and interested parties to pursue litigation, and more importantly, it is the job of the applicant to conduct an exhaustive search and certify that the patent application contains patentable material.

By design, it is litigation that primarily handles this problem.

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".

Doubtful. The entire legal system of the United States is predicated on extremely low bars to entry--a measured and intentional response to the court practices of England.

This as a matter of course includes having only minimal checks against frivolous lawsuits and it includes a full awareness of potential for abuse. It was decided, as part of the Framers' systemic design, that putting up with abuse was the cost for freedom. After all, part of freedom is living with people who make choices you don't like.

Finally, given that the very early development of the patent system involved (and to this day involves) a high priority placed on free assignment, that is, the ability to sell wholesale patented inventions, assign royalties to any party, and generally deal freely with the invention, patent trolls existed from day one. Anyone can buy a patent outright and then milk the competition.

Patent trolls have become more sophisticated and more prevalent, and their job is much easier with the Internet exposing targets for them that in, say, 1813, they'd never have heard of, but the patent system grants exclusive rights to patent holders on, among others, the manufacturing and use of the patented device or process.

The holder of that exclusive right is free to exercise it. Once again, we come full circle to "freedom means dealing with the disagreeable choices of others."

None of that is to say that there aren't reforms that can alleviate some of the burdens of today's troll industries, but the patent troll will never be eradicated without interfering significantly with legitimate patent applicants and holders. (Then of course, there's also the argument that patent trolls actually perform a useful service and respond to market forces--but that's a topic for another time.)

Re:The Problem Discussed Lies With The USPTO (2, Informative)

Dachannien (617929) | more than 4 years ago | (#30916260)

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.

To some degree this is true, but I want to make it clear that most of us do our job as well as we can in the time provided. Unfortunately, as you mention, we don't have the time needed in some cases. It's taken a lot of arm twisting to get management to agree to modify the way our production is measured, and they were kind enough to give us two more hours per case (sort of) in response to the massive issues with examiner attrition.

But all of this goes back to Congress. The USPTO is supposedly a fee-funded organization. Applicants and patent holders pay us fees for practically everything. When you apply, you pay a fee for filing, as well as a search fee. When the application publishes, you pay a fee for that. When the application is allowed, you pay a fee for it to pass to issue. You pay maintenance fees at up to three points during the issued patent's lifetime. And there are other fees: when we send you a decision on whether your claims are allowed or rejected, you have six months (by statute) to respond, but if you respond after the third month, you have to pay us an extension of time fee. If you want to file a petition pertaining to an app or file an appeal of our decision, there are fees for that as well.

The point is, we charge all these fees, and ostensibly, we run the Office by using the fees we collect... except for two things: one, the USPTO does not have authority to set its own fees. And two, the fees we collect go back into the US Treasury, and Congress has to re-appropriate those fees back to us. Throughout the late 90s, when technology was booming and the USPTO was awash in fees, Congress decided to take those fees and spend them on other programs instead of letting the USPTO use those fees to hire more examiners and update its infrastructure. The result is an inventory of over 700,000 pending applications and an average pendency of about three years - and currently, the Office doesn't have enough money to do anything other than rehire old examiners who left the Office for supposedly greener pastures (because the training expense is vastly reduced, compared to fresh new hires), despite the fact that we're shedding examiners at a rate of 500-600 a year even during the economic downturn.

So if you want a solid and sane patent system, two things are required: reform in the "how patents work" side, and proper appropriations from Congress to ensure that the USPTO can actually get all those applications properly examined.

One final note: patent examination is not expected to have perfect results. Since this is Slashdot, I'll offer a lame analogy: A person walks up to you and says, "I may have lost my needle in that giant haystack over there, but I'm not sure. Could you try to find it for me, please?" Not only is searching the prior art like looking for a needle in a haystack, but you aren't sure the needle even exists, and there's a huge line of other people who want you to look for their needles as well. Eventually, you may have to just give up and tell the person that you didn't find their needle (i.e., give them a patent). While occasionally we do issue something that shouldn't be issued, there are thousands of other applications that go abandoned and thousands more in which the claims are narrowed over the course of prosecution to ensure that the issued patent covers only what the applicant actually invented. As with everything else, though, it's the screw-ups that get all the press.

Re:Lets not pussyfoot around (3, Interesting)

phantomfive (622387) | more than 4 years ago | (#30914664)

Immoral? I'm not sure that word means what you think it does.

In an ideal world, people who enjoy an artists work would be able to pay the artist directly for their enjoyment. That way the artist is supported, and people who aren't interested don't have to support what they consider 'junk.' That is how it should be.

In the real world, copyright is a pretty good way to get that done. Are there problems with it? Yes, and the law is a little behind the latest technology (big surprise). That doesn't mean everything about copyright is bad.

Usually people I see who consider copyright immoral are people who are too cheap to pay a dollar for a song. Copyright for a reasonable length of time is not immoral, it's a good system.

Re:Lets not pussyfoot around (1)

pla (258480) | more than 4 years ago | (#30915394)

Usually people I see who consider copyright immoral are people who are too cheap to pay a dollar for a song.

No doubt the millions dying needlessly of AIDS and Malaria (etc) would find your statement a comforting explanation of why big Pharma has no obligation to license their on-patent lifesaving drugs to low-cost (and even outright charitable) manufacturers.

So yes, "immoral". Patents quite literally mean people suffer and die for no better reason than profit.


As for copyright - Apply the current trend of perpetual extensions to a few works that actually mean something to you, to which you have access only because they lack a current copyright... How about the bible? "Sorry, not yours, the Vatican holds the copyright and forbids any distribution". Newton's Principia. Darwin's Origin of Species. Hubbard's Dianetics - Oh, wait, that one does have a current copyright, and look how open and morally they behave.

Re:Lets not pussyfoot around (1)

Attila Dimedici (1036002) | more than 4 years ago | (#30918078)

No doubt the millions dying needlessly of AIDS and Malaria (etc) would find your statement a comforting explanation of why big Pharma has no obligation to license their on-patent lifesaving drugs to low-cost (and even outright charitable) manufacturers. .

So, exactly why would big Pharma spend millions of dollars to develop a new drug, if they must give it away once it has been proven to work?

Are there problems with the patent system? Absolutely!! Would eliminating it entirely fix those problems without creating even worse problems? Not a chance!

Re:Lets not pussyfoot around (0)

Anonymous Coward | more than 4 years ago | (#30918292)

I think there's a difference of the granting of the patents, to the actual use of the patents.

Q: Since the Vatican holds a patent on the bible, does that make it any harder for a person to obtain one?

A: No, but it says "I was here first!!!" to anyone that would claim otherwise, in a situation where damage can be done to the company (or religion) involved.

Re:Lets not pussyfoot around (0)

Anonymous Coward | more than 4 years ago | (#30915670)

You're right - let's not pussy foot around

- the system is broken and it stifles innovation (1 click patent?)
- the system is broken and it stifles innovation (the mouse that roared - Mickey and his indefinite copyright by a cancerous organisation)
- the system is broken and it stifles innovation (wavelet compression and its failed advancement since the early 90s due to patents)

Do you want me to go on?
The System IS BROKEN

Re:Lets not pussyfoot around (1)

melikamp (631205) | more than 4 years ago | (#30916372)

Copyright is in the direct conflict with the freedom of speech, and there is not a shred of evidence that it provides an actual incentive to produce works of art: i.e. there is no evidence that fewer works would be produced without it. It follows that it only benefits the lucky few, while the public gets stuck with a tax on all art production and consumption. Looks like a pretty good case for it being immoral.

Re:Lets not pussyfoot around (1)

argStyopa (232550) | more than 4 years ago | (#30915690)

Actually, no, that's a complete misreading of the intent & point of such laws.

Imagine you invented The Next Great Thing in your garage.
Without these laws, Supermegacorp, seeing your great idea, could (for a trvial investment on their part) copy your idea and annihilate you competitively.

These laws protect innovation PARTICULARLY when the innovator is poor of resources to compete with rich&powerful opponents.

Re:Lets not pussyfoot around (0)

Anonymous Coward | more than 4 years ago | (#30915886)

How long will we wait?

Until hell freezes over plus 30 years at a guess.

Did I hear "net gain to society"? (0, Flamebait)

Ihlosi (895663) | more than 4 years ago | (#30914480)

And why can't we prohibit a cause of action for patent infringement where there is no net gain to society?

What are you, some kind of communist?

Re:Did I hear "net gain to society"? (0)

Anonymous Coward | more than 4 years ago | (#30914620)

I'll bite.

Let me guess. You hate people?

When there is no net gain to society? (2, Insightful)

Anonymous Coward | more than 4 years ago | (#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 ...

what if the EU stops with software patents? (0)

Anonymous Coward | more than 4 years ago | (#30914724)

There is a petition going on ( see stopsoftwarepatents.eu ), I wonder what happens if the EU stops the whole software patent circus.

Would the US have to follow, or see their software industry collapse?

Re:what if the EU stops with software patents? (1)

julesh (229690) | more than 4 years ago | (#30914866)

Would the US have to follow, or see their software industry collapse?

No. The US is, I believe, the world's largest market for selling software. To sell into it, you have to follow US law, including patent law. So for anyone who wants access to that market (i.e. the majority of software developers), they have to follow US law wherever they are; therefore why bother relocating outside the US?

Re:what if the EU stops with software patents? (1)

bcmm (768152) | more than 4 years ago | (#30915386)

No. The US is, I believe, the world's largest market for selling software. To sell into it, you have to follow US law, including patent law. So for anyone who wants access to that market (i.e. the majority of software developers), they have to follow US law wherever they are; therefore why bother relocating outside the US?

Even if the EU is a smaller market than the US,* it would still potentially be worthwhile to develop non-US software if it was going to be significantly cheaper (due to patent licensing and massive legal costs) to make, especially for smaller developers. It could also end up being cheaper to obtain bespoke software, which won't care about weird American laws if the company commissioning it doesn't have an American branch.

* I wouldn't know how to go about finding such stats, but the EU has a greater population and GDP.

Article says Mind Your Own Business (0)

Anonymous Coward | more than 4 years ago | (#30914948)

As I read it, it bringing back those laws would also stop people contributing to the legal defense of (say) the Pirate Bay, on the grounds that it was none of their business.

Wouldn't this kill open source? (0)

Anonymous Coward | more than 4 years ago | (#30914970)

Wouldn't barratry kill off legal defense funds? Since those are the only real way that open source orgs have to defend themselve, I'm pretty sure this wouldn't work well. The same goes for transferring copyright to the FSF.

Barratry (4, Informative)

DynaSoar (714234) | more than 4 years ago | (#30915136)

Barratry is alive and well, in both federal and many state judicial systems:

http://www.abajournal.com/news/article/lawyer_awaits_verdict_in_barratry_trial_over_subpoena_sent_to_opposing_part/ [abajournal.com]
http://www.lukegilman.com/blawg/2009/11/07/houston-lawyer-charged-with-barratry-for-having-homeless-man-hand-out-business-cards/ [lukegilman.com]
http://www.citmedialaw.org/threats/state-oklahoma-miller-v-king [citmedialaw.org]

In the case of "the offense of persistently instigating lawsuits, typically groundless ones",
just making the accusation is often enough to make the attorney quit a case. They can be tried for it in court as well as being censured or disbarred, whereas the client can only be tried (often not understanding what it is and/or thinking their case's validity precludes such a charge). It may have been used successfully at least once in a context in which it is often discussed: "In Religious Technology Center v. Gerbode, 1994 WL 228607 (C.D. Cal. 1994), a Rule 11 sanction of $8,887.50 was imposed against Helena K. Kobrin, an attorney for the Church for bringing legally baseless, frivolous claims", however corroboration for this is lacking.

Re:Barratry (0)

Anonymous Coward | more than 4 years ago | (#30916368)

The patent troll example in TFA doesn't seem entirely correct, but what about the hollowed-out shells that mysteriously continue litigation? Companies like SCO or Psystar, for instance. Psystar especially springs to mind, as their backers have never been disclosed and they only sold about 300 computers, but they seem to have a never-ending supply of cash for their lawyers.

easier: award the trolls $1 (1)

redelm (54142) | more than 4 years ago | (#30916674)

Patent trolls are in a very tenuous position -- in the absence of a lawsuit/settlement, they would not make _ANYTHING_ from their patents (even if valid). So their damages are _ZERO_. Not some hypothetical value had they chosen to manufacture or licence.

Time to look at the concept of damages more closely, not just make them broad. There is a serious question whether juries should set damages, or perhaps as fact-finders be forced to break them down for appeals to review at-law.

Re:easier: award the trolls $1 (1)

Theaetetus (590071) | more than 4 years ago | (#30918320)

Patent trolls are in a very tenuous position -- in the absence of a lawsuit/settlement, they would not make _ANYTHING_ from their patents (even if valid). So their damages are _ZERO_. Not some hypothetical value had they chosen to manufacture or licence.

You mention licensing - that's the point. Patent trolls rarely fire a lawsuit as the first salvo - they're highly expensive and the outcome is uncertain. Instead, they send a carefully worded letter to indicate that they're open to licensing negotiations. When the target declines, then they file a lawsuit. So, damages can be based off of their licensing fees, or alternately, what the fair market value of a license of that patent would be.

Re:easier: award the trolls $1 (1)

redelm (54142) | more than 4 years ago | (#30918558)

... so send a carefully worded reply. Whe3n they become unreasonable, then decline.

Get the patent purchase price as part of discovery!

Re:easier: award the trolls $1 (1)

Theaetetus (590071) | more than 4 years ago | (#30918642)

... so send a carefully worded reply. Whe3n they become unreasonable, then decline.

The point about the carefully worded letter is that if they said "we have patent x, we think you infringe, we'll sell you a license for y," then that creates a legal controversy... allowing the non-troll company to file suit for a declaratory judgement of invalidity/noninfringment in their home state, instead of E.D. Texas.

If you send a carefully worded reply that indicates you're not interested, then the troll files in E.D. Texas, and you're in a lawsuit anyways.

Get the patent purchase price as part of discovery!

Well, yeah, of course. But that's additional proof of damages. The trolls don't get them for free.

Even older laws (1)

gmuslera (3436) | more than 4 years ago | (#30916738)

or lack of, at least, like when there wasnt patents in general, or lasted a reasonable amount of time, or didnt existed trivial/common sense/"soft" patents.

Personal injury (0)

Anonymous Coward | more than 4 years ago | (#30916898)

Champerty and maintenance also make life a lot more difficult for ambulance chasing lawyers, as they can't get third party funding to bring court cases on behalf of people who fell over because they're too dumb to stand up and/or get a job.

A very superficial article (2, Insightful)

Grond (15515) | more than 4 years ago | (#30918164)

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 [uspto.gov]. Assignability is also guaranteed by Article 28 of the TRIPS Agreement [wto.org], 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 "except for an assignment to a successor to the business of the applicant, or portion thereof, to which the mark pertains, if that business is ongoing and existing."

The author almost certainly knows but elected to omit that there is a very strong policy reason for tying trademark ownership to use and requiring that an assignment of the trademark accompany an assignment of the business. Trademarks exist to designate a source of a good or service. If there are no goods or services, then the mark can't designate a source. If a mark could be sold without the accompanying business, then consumers would be misled as to the nature of the good or service indicated by the mark.

Trademarks are as much about protecting consumers from being misled as they are about being the exclusive property of the trademark holder. The restrictions on assignability are part of the core purpose of trademarks, not reducing the number of lawsuits.

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