The problem being: patent trolls like Lodsys LLC do not actually create anything. There's nothing to countersue over.

> The problem being: patent trolls like Lodsys LLC do not actually create anything. There's nothing to countersue over.

They don't sell products, but they surely use computers internally. Which makes them vulnerable to all sorts of patent lawsuits.

Patent law lets you sue both the person making the software (Microsoft etc.) and the person using it, in this case Lodsys.

That's the point of the marked for life bit, if it were legal - and it seems like it probably isn't, IANAL etc.

But if it were, anyone setting up a patent trolling company would be targeted at future companies as well, which is a very concrete disincentive.

Ex patent trolls would basically run the very real risk of being unemployable, and have trouble starting legitimate ventures as well.

If we drop the concerns over legality, what about starting rumors that there's a secret offshore blind trust, contributed to by both deep-pocketed victims of patent trolls and open-source developers. A trust which exists to take the other side of anonymous bets regarding the death or disappearance of patent trolls.

How about getting a patent of the act of filing a lawsuit and suing those asses to oblivion?

IBM has a patent on that ;-)

Why does the countersuit have to be about patent infringement? Just sue them to be a nuisance. I'm sure Apple's lawyers are good enough to be a thorn in Lodsys' side.

A couple of problems with that:

- Filing a frivolous lawsuit makes the plaintiff liable for the defendant's legal expenses.

- Repeatedly filing frivolous lawsuits can get you labeled as a vexatious litigant, and if labeled as such you need a judge's permission to file even a valid lawsuit.

- Lawyers knowingly participating in frivolous lawsuits or vexatious litigation can be disbarred.

For these reasons, I don't think you will see corporations filing a lot of meritless nuisance lawsuits.

That idea's been around for a good while now, and it's been partly implemented in things like the OIN http://www.openinventionnetwork.com/about.php . Eben Moglen talks about the situation in http://www.youtube.com/watch?v=k3QJB81rfbs (skip to http://www.youtube.com/watch?v=k3QJB81rfbs#t=6m44s if you want).

Getting a patent is annoying enough (> 5 years of waiting and prodding a cube worker) and expensive enough (tens of $k) to kill most altruistic patent seeking. People are motivated to get them by a return on their investment, not the happy notion that the world is marginally less bad.

"People are motivated to get them by a return on their investment, not the happy notion that the world is marginally less bad."

I've always understood that as well as restricting other companies from competing with a patent holder, there is also an element of "mutually assured destruction" which would potentially allow negotiation and cross-licensing with companies asserting a patent. Didn't SUN maintain patents for exactly this process?

Unfortunately most hackers won't have the ability to pay for filing patents in the first place. If you could get some patent lawyers working pro bono it might work.

It seems much easier just to petition the USPTO to re-examine the worst-offending patents, like the EFF's Patent-Busting project: http://w2.eff.org/patent/wp.html

What's the law on preferential protection of your patents?

With copyrights and/or trademarks, I think there's something like losing the rights if you fail to defend them. So people with legitimate, inoffensive uses for things have been quashed because of corporate policy on potentially profitable legal fictions.

edit: Whoa, forgot to complete the thought. The point is, you could lose if you end up just going after the people you don't like, leaving everyone from Apple to Microsoft to Zynga free to use your patents without so much as a licensing fee or even a piece of paper saying they can.

Maybe having enough money to pay lawyers to attack people. But yes, I think this would be awesome, and if it was successful enough, whenever large companies say 'oh, we only hold patents for defensive reasons' they could be pressured to donate them. Hmm thing is though, the countersue companies to stop them enforcing patents doesn't work so well for true patent trolls who aren't actually doing anything so probably aren't breaching patents (unless their patents breach patents, if that's possible).

I think RPX http://www.rpxcorp.com/ already does what you are suggesting. They seem to be doing quite well with that concept and just had a successful IPO: http://247wallst.com/2011/05/05/rpx-ipo-changes-tech-patent-...

How about patenting "a method for discovering patented methods in an application through a device". If you could be granted that patent, it would be the end of all patent trolling companies, forever. Or at least, you'd make a huge amount of money.

So basically an exact opposite of Intellectual Ventures? The problem with this is that people are still wasting energy, money, and time defending themselves. We need to get to a point where people can do their jobs without having to be paranoid that their going to get slammed with a lawsuit for some obscure and vague patent.

I think patents should be issued on a use it or lose it basis: if you do not make attempts to at least produce or license the product, you should not be allowed to horde it's IP and you it to extort others. Non-practicing entities, aka patent trolls, should be made illegal in general if they aren't making attempts to license their IP.

Sorry to be a nay sayer, but it won't work. If this requirement were set in place, a patent troll will get around it by hiring a coder for a week to get something out really quick that does something nobody needs and then they'll sell one copy to their grandma. This won't evoke any real change unless you manage to make it very complicated. There would have to be mandates in the law like x% of your company's revenue must be from actual sales of the product or something like it.

The better solution is to just end software patents. They have no value in the current software economy.

Of course there are loop holes in the the suggestion I made, it wasn't meant to be a cure-all solution, but rather to point out there are many many more pragmatic ways to go about software patents. I agree that the original inventor should be protected to an extent, but the current system is broken and needs reform.

Yes, it's not at all a perfect solution. But it's a practical hack that one of us could start, so it probably shouldn't be compared to what legislation to fix the issue could theoretically do.

Although I'd the take legislation in a heartbeat.