[cc-community] Help w/ Defensive Patents Agreement
Mike Belshe
mike at belshe.com
Wed Feb 6 01:24:39 EST 2008
Hi, I'm a newcomer to this group - forwarded this way via Mike Linksvayer &
Lawrence Lessig. Hopefully my email is not out of line :-)
Here is an idea I'd like to see come to life.
Like many others, I fundamentally believe software patents are broken. Due
to the current business climate, we can't get rid of them. Yet, the more we
make, the worse the problem gets. I'd like to mitigate this.
Background:
Companies across the US are asking their employees to file patents like
crazy. Microsoft, Sun, and many others pay employees $1000 or more for
every patent they file (sometimes even w/o being approved by the USPTO).
The company always says to the employee, "Don't worry, this patent is for
*defensive* purposes only. It will never be used unless someone is trying
to sue us."
Of course, things don't always work out that way. Visto is a great example
of this. Once the company got desperate (e.g. going out of business), they
sold their patent rights, and viola, the patents are now being used
aggressively rather than passively. This is counter to what the original
inventors were told would happen to their patents.
Idea:
What if we could draft a contract, between the inventor(s) and the
employer. The contract would give the company rights to the patent so long
as the patent is used for "defensive" purposes only. The patent would not
be transferable to other companies except under the same defensive purposes
agreement. We could distribute this contract freely on the net, and
encourage inventors to get their employers to sign them. Over time,
hopefully the world would have a lot of "defensive" patents, but not
aggressive ones. Of course, the legal definition of "defensive" is pretty
tricky. Perhaps a non-transferable patent is the only feasible contract.
Here is where I need help. I have lots of additional thoughts on this topic
around goals and how it should work structurally. But, I'm not a lawyer and
completely incapable of actually creating it (although that doesn't
necessarily prevent me from trying! :-)
What do you all think of this idea? Does it have merit? Is it something we
could accomplish? There is no doubt in my mind that if we are successful
with this, we could change the software industry in a very positive way.
Anyone want to help make this? What is the fatal flaw in the idea?
Thanks for your thoughts and any guidance you can give!
Mike
---
Mike Belshe
mike at belshe.com
http://www.belshe.com/
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