Patent Freedom Foundation

I had an idea on the bus coming into work this morning. It didn't have caffeine applied yet, so it's either less or more coherent than normal.

I was wondering how much of the patent brouhaha over the last couple of years (at least it seems like it's been louder, or at least a bigger issue, over the last couple of years) is a result of companies filing patents to protect themselves from patent infringement lawsuits from other companies.

Say "Company A" comes up with a new whizbang widget. They file a patent on it, so "Company B" can't sue them for their new whizbang doodad product. "Company B" files for patents to be safe in case "Company A" (or C or Z) happens to get a patent that covers something similar. The arms race escalates, with each company adding to their stockpile in potential defense of attack by patent-wielding aggressors.

I believe that companies may be justified in doing this, as the patent system has obviously been damaged. Prior art may not be disclosed on patent filings. Obviousness is irrelevant. Anyone can patent anything (well, anyone with enough cash).

What if there was a neutral third party agency, a Switzerland of patents, where companies (and individuals) could transfer patents under the condition that the patent never be enforced. The company that created the patent is still protected from future litigation related to that patent, innovation is encouraged, and the arms race becomes defused.

Ideally, there would be a team of lawyers making the process run smoothly. Even more ideally, anyone that signs ownership of a patent to the PFF would be reimbursed for the costs they incurred while filing the patent, so there's nothing to be lost. Maybe there's even a premium that could be paid - companies can make money directly from transferring patents to the PFF.

Taken a step further, the PFF team would be actively working with the community, responding to other patent applications and helping to show prior art where possible.

This concept could be used as a form of repair mechanism for the patent process, and could be extended to include different forms of patents (software, technology, genetic, etc...) to create a safe and level playing field.

Not every patent would be appropriate - many are filed for the express purpose of creating an uneven playing field. But patents that are filed strictly to carve out a defense against potential litigation would be prime candidates for this. Maybe the Blackboard LMS patent could be the first one?

Of course, I am not a lawyer. This may make no sense at all, and I might just come off sounding like a left-wing pinko, but I think there's something to the idea of a PFF. 

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