Don Marti has a great podcast where he interviews a Linux Foundation executive on the patent troll question. Don asks a question that clearly caught the guy by surprise: do efforts to find patent prior art prior to litigation help the patent trolls by making it more likely that the trolls’ remaining patents will stand up in court? The answer was basically that invalidating bad patents will reduce the total number of patents, which will in turn reduce the number of opportunities for patent trolling.
Don seemed skeptical of this response, I have to say I share his skepticism. The number of software patents in the wild is now so astronomical that it’s simply not going to be feasible to invalidate all of them on a case-by-case basis. Moreover, there’s a more fundamental issue here: there is not, on the one hand, “bad” software patents that need to be invalidated and “good” software patents that need to be enforced. Software patents are just a bad idea, even when they’re “good” in the sense that they don’t have obvious prior art. A “good” software patents can be used for trolling purposes just as easily as a “bad” one, with effects that could be just as devastating to the software industry. Hence, even if the Linux Foundation could find every software patent with prior art and get them invalidated, that wouldn’t eliminate the patent trolling problem, it would just cause the trolls to shift their focus to the remaining patents in their portfolios, with a correspondingly greater confidence that they’ll prevail in court.
The solution to the patent trolling problem in the software industry is for the Supreme Court or Congress to overrule the Federal Circuit’s misguided decision to expand patents to the software industry. There are now so many software patents on the books that striking down a few bad patents just won’t make any difference. You can troll with a half-dozen patents almost as easily as you can with a dozen. The Linux World exec was a little bit wishy-washy on this point, first stating vaguely that “meaningful patent reform” was needed, and then conceding when pressed that banning software patents was probably a good idea. I imagine one of the reasons the Linux Foundation hasn’t come out officially against software patents is that its board includes several companies with substantial software patent portfolios of their own. They no doubt would like to find a way to continue collecting royalties for their own patents while giving them new defenses against trolls.
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