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Would there be any obvious problems with defend-it-or-lose-it laws around patents, like there already are around trademarks? Seems like it would kill the submarine-patent market entirely, and would discourage companies from bothering to file for patents they didn't plan on vigorously defending (I could imagine drug companies continuing to file; software companies, not so much).

I don't tend to hear this suggested in patent-reform discussions, though, so I assume there's a reason not to go this route.



Unless I'm mistaken, it certainly wouldn't stop patent trolls, who buy/keep patents precisely so they can use them. The only thing it would stop is companies holding patents for defensive reasons, who have no intention of actively pursuing patent violators but who patent their ideas in-case they are sued by a patent troll with a similar idea/patent. Google claims to follow this in terms of open source projects[1].

[1]:http://www.google.com/patents/opnpledge/


Patent trolls buy them and keep them to use them eventually, but will wait a long time before doing so so that lots of members of industry will have infringed before starting to sue. In trademark law, you can't do that: if you're lax and let your mark become generic, it's basically impossible to go back and go after infringers after the fact (this happened to "nylon," for example).

There would still certainly be patent trolls, but as a start-up, you wouldn't have to worry as much about them... if you wanted to implement a feature that other companies were also implementing, you could do so with a reasonable amount of safety: either they weren't patented, or they were and there would be noisy lawsuits going on about them, or the patents existed but were no longer valid due to lack of defense.


But "defend it or lose it" means going after all infringers, which patent trolls certainly don't do. They are currently very selective about enforcing their patents, choosing to assert where they will win.


I'm not sure it's completely practical, but this would have some interesting interactions with obviousness -- if you need to sue half the industry, it may say something about the obviousness of the patent itself.


Hindsight is 20/20. Everything is obvious, once someone already paves the way to the solution.

This is why, in principle, there is the "prior art" clause. It's just not enforced well enough in the software realm--but the mechanism to prevent patenting something widely known a posteriori does technically exist.


Well the non-obvious requirement of patents to be granted in the first place is defined such that experts in the field would not come up with it in response to the problem it solves. This is not the case with most software patents.




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