Delaware judge discovers hidden entity recruiting people to be patent trolls

Tax patents as "property" whose maximum damages are proportional to the taxes paid? Give the owner of the patent a "grace period" and have the taxation schedule ramp up over the life-time of the patent. So, for instance: .1%, .5%, 1%, 3%, 5%, ...

> what makes software unique in that it would be effectively excluded

I can answer this:

1) Because software is already covered by copyright.

2) Because any given idea or concept in software can be implemented an infinite number of novel ways. Patents only cover specific implementations of an idea... Not the idea itself.

Let's use Amazon's One Click patent as an example: How many different ways do you think that could be coded/handled? How many different programming languages could be used to make it work?

If the One Click patent was actually specific enough to not be a broad concept (as required by patent law) it would include the actual code that makes it work. That's the software equivalent to an engineer's blueprint. However, if you look at the patent claims (https://patents.google.com/patent/US5960411A/en) you can see that every single claim is just generic nonsense (e.g. "The method of claim 11 wherein the client system and server system communicate via the Internet.").

Even if you add all the claims together and examine the patent as a whole you still get nothing but a broad concept on the idea of clicking once to place an order. Repeat after me: PATENTS ONLY COVER SPECIFIC IMPLEMENTATIONS OF IDEAS, not the ideas themselves. Which is exactly what every single software patent that exists defines: Nothing more than a broad concept.

You could require that patents provide the actual code that makes them work but then they'd be worthless because any given bit of code can be implemented an infinite number of ways. It would be trivial to change a for loop to a while loop or wrap things in functions or even something as simple as using a different programming language. Any of those things and more would get around a patent on a specific implementation of software, aka "code".

The small inventor is supposed to monetize a patent by building something useful for society. That's the whole deal. The patent itself shouldn't have value beyond protecting that path.

Because these questions are so obvious it seems like trolling, sorry for the impatience.

Having run businesses, been involved with patents and the courts, some things are blindingly obvious. So I'll step back a bit.

First, the courts are insanely overworked, so things take forever, lawsuits are insanely expensive for both sides. Most importantly, the entire court system is structured to be anti-scaleable.

Even attempting to use the courts as a scaling solution works against the entire design. If you are sued, you have lost the minute you get served - defendant always pays, and the entire effort and costs are on you, even if you win. The only solution would be to redesign the entire court system, and since the courts are constitutional creations, that means literally re-constituting the entire country (Constitutional Convention, dissolve the old constitution, start from scratch; I can hardly think of anything more dangerous in today's climate).

On the small business side, there is literally nothing that can be done.

Even take a thought experiment where someone magically funds a bottomless supply of money to defend patent cases — no small biz ever spends a penny on attorneys and court costs, and can always afford the best attorneys (nevermind that wrongly accused criminal defendants still need to get by with underpaid & overworked public defenders).

This is still a massive unbearable cost for the small or medium sized business, simply because of the huge of management distraction involved in running a lawsuit. In a lawsuit, it is NOT just "let the attorneys handle it". Every case is unique, and the attorneys are handling only the legal issues — they need to be educated from scratch on the issues in the case, and all that time and effort to educate the attorneys comes from the defendants. Then, the defendants must to sit for depositions (a whole day or more), which need extensive preparation, and be involved in preparing for trial, which just blows entire days or weeks out of the schedule, and so on...

So, even if the external costs are 100% paid, it is still enormously costly. Even if you also paid every exec and employee involved their entire fully loaded employment cost, it is STILL too costly, because of the opportunity cost. Those person-months of time are all taken from the company's productive work on their products.

Now, multiply this by dozens or hundreds of lawsuits on every patent, trying to simply sort out whether the patent is even valid. The overall cost to society would be insanely massive. Giving each patent examiner 10X the time (vs the simple doubling requested by the examiner's comment above), and doubling their pay would not even be a rounding error compared to the costs you would impose on every innovative business with such a court-based plan. And, the results would be worse.

Part of the reason I find this annoying is that I also used to start from a Libertarian perspective. It is very attractive. But every time I started to work through how a Libertarian solution would ACTUALLY work, I found that even the first-order consequences were ludicrous, and usually ludicrously expensive. I would up re-inventing the government structures that we already have. So, it is either naive, or a trope to sucker naive people into trying to tear down the institutions that society has already built. Of course these need to be improved, and they should be, but the L approach really doesn't begin to work.

It's tiring to hear people in government say all their problems can be solved with more people and more money.