The Patent Pledge

I disagree that this will help, because the established companies the pledge would apply to are a secondary problem and mostly seem to fight each other (has Microsoft asserted patents against a startup? has IBM? has AT&T? when they asserted patents it was against multi-million dollar businesses!). The primary problem is patent trolls (see e.g. lodsys / intellectual ventures) for whom this pledge could be considered self-harm.

I will quote myself from [ http://news.ycombinator.com/item?id=2855835 ] here for another solution, one that actually can _easily_ go through government (except for the intense lobbying against it by whoever enjoys the current patent regime); you can read there for some discussion if it is interesting. Quoth myself (with minor editing):

Intellectual "Property Tax". Have everyone declare the value of their intellectual "property" (patents, copyrights, trademarks) - each and every item, for that year, on their tax return, and have them pay 1% of the value as "IP tax", per year.

Clarification: you can set a different value every year. The value may drop to zero because a competitor's patent solves the problem better; or it may go up because it becomes essential to something that becomes commonplace.

That amount is what one pays for a compulsory license or if successfully sued, and up to 3 times that for willful infringement, per year -- and no more. (But of course, a patent owner can always negotiate a lower payment, as is done with music recordings that have compulsory license agreements)

All of a sudden, everyone has an incentive to state a reasonable value for their patent. Copyright catalogs that are not being published (old music recordings, old books, old movies) would be assigned 0 value by copyright holder, to avoid tax - which means anyone can freely make a copy. If they believe -- at the end of the year -- that someone is making a profit at their expense, they can set the value as high as they want at the end of that year, pay the tax, and sue the profiteer.

Simple, elegant, and coffer filling.

edit: put missing link

edit: added clarification about setting value each year anew.

I think the idea is that if the company is successful enough to have grown to 25 employees, it stands a better chance of having access to competent legal counsel and other resources. The penalty might be bigger in monetary terms, but smaller in terms of making the founders' lives a living hell.

''The patent pledge is in effect a narrower but open source "Don't be evil."''

I get 'narrower' but what does 'but open source' mean here?

AlexBlox asks in an earlier comment: "does publicly stating this pledge bust any opportunity to double back (i.e. it is more legally binding than just a pledge?)"

A court might well hold a company to such a pledge, on a theory of "equitable estoppel." This type of defense to an infringement charge is always highly fact-specific; here's an example of a case in which the defense succeeded:

A patent owner accused a manufacturer of eyeglass frames---which it had previously sued for infringement---of infringing other patents. After back-and-forth correspondence---in which the manufacturer denied infringement---the patent owner went silent for three years. In the meantime, the eyeglass manufacturer expanded its marketing efforts for the products in question.

The trial court held that the manufacturer was not liable for infringement, on grounds that the patent owner's actions, in view of all the circumstances, had misled the manufacturer into thinking it would not be sued. The appeals court found no error in this holding [1]; it explained that:

"In the context of patent infringement, the three elements of equitable estoppel that must be established are:

(1) the patentee, through misleading conduct, led the alleged infringer to reasonably believe that the patentee did not intend to enforce its patent against the infringer;

(2) the alleged infringer relied on that conduct; and

(3) due to its reliance, the alleged infringer would be materially prejudiced if the patentee were permitted to proceed with its charge of infringement."

[1] Aspex Eyewear, Inc. v. Clariti Eyewear, Inc., 605 F. 3d 1305 (Fed. Cir. 2010) (affirming summary judgment in favor of accused infringer), http://www.cafc.uscourts.gov/images/stories/opinions-orders/...

Everyone will game the IP tax by valuing it at pennies -- after all, they may not directly be using it may not have a fair market value before they take someone to court.

As a real-life example of people gaming these types of taxes, people buy expensive (>100K USD) cars in europe directly (i.e. taking delivery in stuttgart) to save on the sales tax: driving it around for a bit ensures that the car is technically "used" when brought back here, circumventing new car taxes.