Patent Entrapment

There are companies in the U.S. that subsist entirely on collecting patents and then waiting for someone to infringe so they can sue them.  Many of these companies obtain most of their patents by buying them from other failing businesses, not by patenting their own new technologies.  In the '90s, businesses that used this practice were called "patent trolls" and were looked down on by real tech businesses like Microsoft.  Now, however, this practice is industry standard for the tech industry.  Businesses that used to decry patent "trolling" as unethical and foul are now the ones that subsist most heavily on it.  There is evidence that Microsoft makes more of its revenue in patent infringement settlements than in sales of its software.

Most people today believe that patents are intended to give inventors complete control of their "intellectual property" and to allow inventors to make as much profit as possible from their inventions.  This is actually blatantly false, but even assuming it were true, there are major ethical problems with patent trolling and even with just selling patents.  Selling a patent eliminates any control inventors have over their inventions.  This violates the idea that patents should give inventors control of their inventions.  Even selling exclusive rights to use patented technology for a limited time is a violation of this principal.

That said, this is not the concern.  According to the U.S. Constitution, patent and copyright are only authorized "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"  As a matter of fact, the term "intellectual property" itself is a misnomer.  The Constitution does not authorize any kind of ownership of inventions, ideas, or any other non-tangible work.  Based on the ultimate legal definition of patents in the U.S., the purpose is not to give control to the inventor, but rather to benefit society by promoting technological and scientific progress.

Patent trolling does not promote science.  It does not benefit society either.  Selling patents or exclusive rights to use patents may promote progress, but only when the buyer is going to immediately use the patent to create new technology that benefits society.  When the buyer is going to sit on the patent waiting for someone else to infringe, it is not promoting any sort of progress, and ultimately it is harming society.  It does this by incurring attorneys fees and adding additional costs to the production of the new technology.  It also does this by causing fear of litigation in smaller technology businesses that cannot afford the expensive patent searches required to make sure they are not infringing on something.  These things actually hinder progress and harm society.

These are not the only ethical issues with patent trolling though.  There are similar practices in the realm of physical property that are illegal, but due to the ethereal nature of ideas, making a valid comparison is hard.  As a result, our legislators do not even bother to try.  The first similar practice is entrapment.  Entrapment occurs when someone places another person in a situation to commit a crime, then encourages them to do so, with the intent to press charges against them.  An example is when undercover police get involved in a protest with the intent to incite a riot, so that they can then arrest the rioters and press charges against them.  The defining factor is the encouragement.  An example of something close to entrapment, but not quite the same is bait cars.  In some cities, police will leave an unlocked car with keys on the seat or in the ignition in a less desirable neighborhood.  They will watch the car until someone attempts to steal it, then they will chase the person down and arrest them.  This is not entrapment because the police are not actively encouraging theft.  If they had sent out an undercover officer to point out the car and tell people to steal it, or if they had left a sign on the dash encouraging theft, then it would be entrapment.

The problem with a valid comparison of bait cars to patent trolling is that physical objects have implied ownership, while ideas have implied non-ownership.  A person taking a bait car knows that they are doing something wrong.  When a physical object is left unattended, it does not imply that it is not owned.  Sometimes, if the owner of the object cannot reasonably be identified, as in lost cash, it is not considered unethical to keep it if a reasonable effort has been made to find the owner, but even then, it is assumed that the object is owned.  Ideas work the other way.  If there is no obvious owner, then ideas are assumed to be unowned.  This is actually why patent law exists.  In the case of ideas, "ownership" is the responsibility of the "owner."  If a person has been granted exclusive rights to the use of an idea (this is what patents grant), they have the responsibility for making it known.  This is opposite from the bait car, where ownership is implied.  As such, it should be treated oppositely for the case of entrapment.

What I am saying is that the patent owner has the responsibility for making ownership of the patent known.  First, the patent owner should make the patent information easy to find.  Patent searches through the Patent Office are very difficult, because there are so many patents to wade through.  Just searching for one patent can take a patent lawyer months, which will accrue far more cost than even most medium sized businesses can afford.  If a patent owner wants to protect their patent, they should make it easy to find.  Companies, like Microsoft, that go to great lengths to obscure and hide their patents should not be allowed to sue over infringement, because they did not make any effort to make ownership known.  Hoarding and obscuring patents with the intent to sue when they are infringed on is approximately equivalent to entrapment by encouraging someone to steal something so that you can arrest them.  It is completely unethical, and inventors should be protected against it.

I also briefly mentioned that hoarding is bad for scientific progress and is harmful to society.  Patents were intended as temporary monopolies granted to inventors so that they would have an incentive for inventing and for developing their inventions.  This extended to selling rights to someone else who would then develop the technology, paying the inventor enough to encourage further invention.  The keys here are encouraging further invention, progressing science, and benefiting society.  When patents are hoarded and not developed, they do not progress science or benefit society.  Sometimes they may encourage the inventor to invent new things, but this practice discourages other inventors from inventing, because the threat of litigation from patent trolls is always looming.  So, ultimately patent hoarding does not progress science (it actually does the opposite, because it prevents others from building on the patented inventions), it does not benefit society and even causes harm, and it discourages inventors from inventing new things.  Patent hoarding does the exact opposite of what patents were originally intended for.  I propose that a good solution for this would be to impose an early expiration on any patent that is not in active development.  I think that one or two years would be a good time frame.  If a patent owner does not actively develop a patented idea for two consecutive years, the patent should expire and permanently enter the public domain.  Active development should be defined as having a significant amount of resources dedicated to development of the idea continuously.  If resources are only given to development intermittently, it should not count, because this could be abused by having a few development teams rotating through unused patents.  Further, active development should require that progress be made.  If a company spends millions of dollars for two years, developing a patent, and has not made significant progress, it should be assumed that the company is either cooking their books in an effort to retain an unused patent, or is not capable of developing the patent within a reasonable time frame.  In this case, the patented idea should be placed in the public domain to allow others to try to use it to progress science and benefit society.  Lastly, the company should be entirely responsible for proving that they are making progress in developing the patent and that they are expending significant resources in its development.  If they cannot do this, then they should loose the patent rights, and it should revert to the public domain, so that others can have the opportunity to progress science and benefit society by developing the idea.

These may seem like extreme ideas.  They definitely violate the false idea that patents are intended to protect the inventor or give inventors control of their work.  These are, however, the ideas that allowed our nation to become one of the most economically strong and powerful nations in the world.  Straying from these ideas has dramatically increased the cost of innovation and has dramatically decreased the incentive to innovate.  This, in turn, has increased the cost of technological goods.  Over time, this has caused harm to our economy.  The United States is no longer the clear economical leader of the world.  In fact, we are beginning to loose out to China, a communist nation that we believed would crash decades ago.  China's economy has improved so much that outsourcing work to China is approaching more expensive than hiring U.S. workers.  This is especially true of engineers.  Even if most of the engineering jobs that have been outsourced return to the U.S. though, we are still wading in a mire of patent war filth, facilitated by laws that promote patent hoarding.  As more and more patents are filed, fewer and fewer new inventions will be viable.  If we cannot get this under control, our engineers will suffocate under the pile of unused patents just waiting to sue them, while China and other countries that do not care about U.S. patents will out play us on every front.  On the other hand, if we alter patent laws to fulfill their original purpose, we could quickly become the most technologically advanced nation on Earth, by a very wide margin.  Our economy could have an unprecedented recovery and then keep improving at the same rate.  We could develop viable, low cost space travel in a very short time.  Really, we could easily reach our former glory, and we could bring the rest of the world up with us.

In case I have not made myself clear, this is a major problem.  This is probably a significant factor in our recent recession, and it is very likely that solving this problem would quickly end the recession, regardless of the other causes.  I am not saying that the other causes should not be fixed, and I am certain that if they are not, they will eventually cause more and worse recessions.  I do think that fixing this problem would fix enough of our current situation to get us out of it.  I am certain that if we do not fix it, it will not take long before a majority of the cost of our technological products will be legal fees (this is already true of many devices), this recession will take a long time to recover, and we will have recurring economic problems until it is fixed.

Lord Rybec