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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. 

I tried to take some time yesterday to distill the patent into plain english. Michael Feldstein did a much better job than I did, which should make it really easy to find relevant and defensible bits of prior art. Of course, the fun part will be finding prior art that hasn’t been purchased by Blackboard…

I’ve been biting my tongue on this whole Blackboard-patents-the-LMS brouhaha that’s going around. I did add my 2 cents to the Wikipedia VLE Prior Art page, with a link to one of the two LMSes I’ve been involved in building before Blackboard applied for this patent.

What follows is a largely stream-of-consciousness rant about some of the issues involved.

I find it completely unfathomable that such a basic and well established classification of software could be summarily handed to a single company. I’m planning on taking some time to actually read the patent, to see if it’s as general as everyone says, or is it really (hopefully) a vaguely worded description of their particular implementation. A cursory glance at it suggests that they’ve managed to throw in utilities ranging from online storage of user data, to storing files on a server…

However, the greater problem isn’t this particular case, but rather the more general issue of software patents as a whole. These intentionally vaguely worded litigation factories only benefit one group of people – shareholders in the patent holding company.

Here’s what’s driving the whole patent engine – public companies are held legally responsible to maximize profit for their shareholders. To the extent that if they fail to generate profit (or acceptably sufficient profit) they can be sued by shareholders. The board of directors is liable. Which drives public companies to squeeze every possible gram of cash out of any possible revenue stream. If they failed to get the patent for a product, and someone else managed to get it – and then came after the company – shareholders would be pissed. So, software patents are conceptually an arms race. Companies are filing patent applications for anything they can think of in order to both protect themselves from others doing the same thing, and to maximize profit by handing the patent to their lawyers and owning a market segment as a result.

But – the patent office should be acting as a filter, preventing these blatant patent grabs as being invalid before getting rubber-stamped. If the patent office can’t properly vet applications, the office should be closed as ineffective or worse.

If Blackboard wants to recoup some karma, they should sign the patent(s) over to an impartial body, ensuring that the patent is used only as a first strike protection to prevent evildoers from obtaining said patent and obliterating an entire marketplace.

So… Who’s the best candidate to be handed the patent? IMS? IEEE? Creative Commons? UN?