> can't we just pass a law stating that "the patent is not being used for anything" is a valid patent suit defense?

That's how patent law worked until the 1940s. It was called the "paper patent doctrine." i.e., if you're patent was just on paper, and not used in industry, then the patent was dead.

Prof. John Duffy wrote a great paper about it last year - http://cornelllawreview.org/files/2013/10/98CLR1359.pdf

Patent trolls could just put out sham products that are cheap to produce but use their patent. And there are also legitimate cases for inventing something and licensing the patent out without producing anything yourself.

Of course in that case, the licensee is

Either a) Using the patent to to produce and sell the invention, in which case it's not a paper patent.

Or b) Using the patent purely to sue other people (which is what most of the big name patent trolls do) and therefore must be stopped.

>Using the patent to to produce and sell the invention, in which case it's not a paper patent.

If they're successful, patent trolls end up with licensees too.

If you're not allowed to sue anyone until you already have licensees, then if you invent and patent something and pitch it to a company, you can't sue them if they rip off the idea.

I agree that this is the way back to sanity.

Most of the patents I have been noticing waved around are "Do something we did 50 years ago... but on a computer". Is the "on a computer" really a definitive mark.

On the idea of 'paper patents', what is to stop someone from registering something barely plausible today that may occur in the near future? Say, something like "3d printed food" where a file that contains the information on the material is structurally printed and heated/cooled. It isn't possible with our current tech, but when someone figures it out 5-10 years from now, you could spring that Jack out of the box and rake in cash.

I am informed that actually the Patent Office is at least starting to back away from 'on a computer' patents.

I confronted a rather weaselly dude attempting to patent troll tabletop roleplaying games by filing for a claim on character conversions, with an exceedingly vague 'with a computer' veneer over it. Fortunately the guy had his application rejected twice, and looked due to have it rejected again (as well as having attracted attention from much bigger fish) before he closed ranks and disappeared.

There is an enablement requirement. The patent has to be able to teach a " person skilled in the art" how to use the invention. You can't patent 3d printed food without disclosing how to do.

But the strategy you suggest is sort of used. The patent attorney will keep open an application for years using procedural tactics, and then try to get claims focused on modern products into the patent.

Being the (literally?) Devil's Advocate... Can we imagine a situation where a company has created something truly novel, and chooses to sell their patent rather than build it out? There will be a period where it isn't being used for anything.

For example - let's say I come up with a much better way to make steel for cars. I patent it right away. Since I don't own a carmaker, it will take a while for me to sell or license it, and perhaps 4 or 5 years for an auto maker to actually use it.

Again, just being the Devil's Advocate.

patents were a way to encourage disclosure of inventions. That objective is now obsolete as pretty much anything can be reverse engineered quickly. So patents morphed into pure rent-seeking tool.

One can easily see that the idea that patents encourage inventions is just plain wrong - just imagine what would happen if patents were abolished - would inventions stop happening?

Inventions wouldn't, but perhaps some kinds of basic research would stop. I don't see this happening in software, but perhaps in Pharma. It's so easy to create a generic, that there wouldn't be any incentive to create something new. At this point we would need the government to fund, and decide what gets funded.

I like the idea. Trademarks are done a similar "use it or lose it" way