John Walker's PATO (described in the post) seems like it might be a good idea.
Here, just to brainstorm a little, is another idea I was kicking around the other day. I'll call it the Rational Software Patent Alliance. The basic idea is that any patent dispute between two RSPA members is settled by binding arbitration performed by the RSPA. Unlike the current system which foists technical decisions of obviousness and infringement on judges and juries who are not competent to make these decisions, the RSPA arbitration team consists entirely of experienced (and very well paid) developers and computer scientists. The arb team will form its own opinion of the validity of a patent, very much including its judgment of the obviousness of same; and everyone should know that only a minority, possibly a small minority, of software patents issued by the PTO are likely to pass the much higher bar of the RSPA.
Of course, there's some risk that a patent holder, unhappy with their patent being considered invalid by the RSPA, would quit the organization so they could sue another RSPA member in the courts. To deter this behavior, we say that an entity can join the RSPA only once; you can't get back in after leaving, and what's more, if someone acquires you after you leave, they can't join the RSPA either, and if they're already a member, they're kicked out.
The incentive to join RSPA is simple: it removes some fraction of the risk of being sued -- said fraction being a function of how many other companies join -- and it wouldn't be expensive unless you actually avail yourself of the arbitration process, and even that would be far cheaper than litigation.
I think this idea is actually complementary to PATO, as it's an idea about how members should resolve disputes among themselves, where PATO is more about how members should help one another in disputes with nonmembers. Walker suggests that PATO members should never be able to assert patent rights against other members, but I think that's going to be a harder sell than what I'm proposing, where companies do have some chance of protecting their real innovations from other members. I think there has to be some chance of that if we're going to get the big players -- Microsoft, IBM, Oracle, etc. -- to join.
So I think there should be one entity -- and "PATO" is definitely a better name than "RSPA" :-) -- that has both of these functions, to help defend members against nonmembers, and to arbitrate disputes between members.
Alas, neither of these functions does a good job of addressing the NPE problem, as NPEs would obviously never join such an alliance, and they aren't vulnerable to countersuits precisely because they're non-practicing. I think if anyone is going to fix the NPE problem, it's going to have to be Congress.
Here, just to brainstorm a little, is another idea I was kicking around the other day. I'll call it the Rational Software Patent Alliance. The basic idea is that any patent dispute between two RSPA members is settled by binding arbitration performed by the RSPA. Unlike the current system which foists technical decisions of obviousness and infringement on judges and juries who are not competent to make these decisions, the RSPA arbitration team consists entirely of experienced (and very well paid) developers and computer scientists. The arb team will form its own opinion of the validity of a patent, very much including its judgment of the obviousness of same; and everyone should know that only a minority, possibly a small minority, of software patents issued by the PTO are likely to pass the much higher bar of the RSPA.
Of course, there's some risk that a patent holder, unhappy with their patent being considered invalid by the RSPA, would quit the organization so they could sue another RSPA member in the courts. To deter this behavior, we say that an entity can join the RSPA only once; you can't get back in after leaving, and what's more, if someone acquires you after you leave, they can't join the RSPA either, and if they're already a member, they're kicked out.
The incentive to join RSPA is simple: it removes some fraction of the risk of being sued -- said fraction being a function of how many other companies join -- and it wouldn't be expensive unless you actually avail yourself of the arbitration process, and even that would be far cheaper than litigation.
I think this idea is actually complementary to PATO, as it's an idea about how members should resolve disputes among themselves, where PATO is more about how members should help one another in disputes with nonmembers. Walker suggests that PATO members should never be able to assert patent rights against other members, but I think that's going to be a harder sell than what I'm proposing, where companies do have some chance of protecting their real innovations from other members. I think there has to be some chance of that if we're going to get the big players -- Microsoft, IBM, Oracle, etc. -- to join.
So I think there should be one entity -- and "PATO" is definitely a better name than "RSPA" :-) -- that has both of these functions, to help defend members against nonmembers, and to arbitrate disputes between members.
Alas, neither of these functions does a good job of addressing the NPE problem, as NPEs would obviously never join such an alliance, and they aren't vulnerable to countersuits precisely because they're non-practicing. I think if anyone is going to fix the NPE problem, it's going to have to be Congress.