What would it take take to actually, truly start a “Humanitarian Patent Pool” like Timo Tokkonen suggested in a posting last week? The idea being to collect certain patents in a non-profit “pool” to keep patent trolls away from ruining humanitarian efforts. The question was inspired by humanitarian catastrophe communications (see SMOS web page). But there could be other areas.
Is HPP even vaguely realistic? Patents are powerful, but not all-powerful: the Doha Declaration allows developing countries to bypass existing patents for medicines when public health is threatened. A concept similar to HPP, defensive patent aggregation, exists in the commercial world, but to my knowledge not in a non-profit setting.
Here are some back-of-the-envelope estimates on how the HPP might work. Bear with me if there are ludicrous errors, and please propose improvements.
The core purpose of the HPP must be to eradicate patent trolls in humanitarian areas. The purpose is not to hinder legitimate players. (This is immediately a controversial goal. Idealists will want to eliminate patents from the humanitarian field altogether. I feel it is sufficient to eliminate just the rabid dogs, and let the healthy ones thrive).
The HPP needs to be a non-profit foundation. It should be international in scope, but it might be sufficient to restrict it to the USA because that is the home of the patent trolls.
The key function of the HPP is to collect ownership of “bad” patents. By “bad” I mean something that is not being used to create anything, but can be used by a troll to stop development. A much more refined definition is obviously needed.
The main category of “bad” patent is one which is too broad and should never have been granted in the first place. Another category are patents for a technical solution which has become obsolete, but which a lawyer can stretch to cover some other technology. Such patents are lethal weapons in the hands of a troll. But they could also be lethal weapons in the hands of the HPP.
There are two key strategies.
- Containment and decay. Collect patents that are allowed to expire as soon as possible. The purpose here is to prevent trolls from making claims, and to create strong prior art against future spurious patents. These patents should for the most part be collected through donations.
- Active deterrence. Patents that can and will be used in litigation against trolls. In some cases, the HPP might consider paying for these. The cost of filing a patent is > 10 kEUR, so the HPP might be willing to consider buying them at cost.
The HPP should be aggressive, not defensive. Unless the HPP is willing and happy to go to court against trolls, it will have no deterrence effect.
Since the USA already has a well-oiled machine in the Electronic Frontier Foundation, it would make sense to tie the HPP in very tightly with the EFF, especially its Patent Busting Project. On the other hands, in terms of funding, the HPP could have wider appeal and hence be independent.
The working principle needs to be absolute transparency. For strategic reasons, if preparing for an attack, the HPP may require secrecy. But even there things need become public when fight is over. As far as I can see, the HPP cannot ever accept secret agreements or settlements.
The focus areas for active deterrence must be chosen very tightly. They should be restricted to those areas in which humanitarian damage can be massive, and in which trolling activity seems to be particularly easy. Catastrophe communications would certainly be one such area.
The budget of the HPP simply cannot be kept small. Even if using only donated patents, there are legal costs associated, even if the patents are allowed to expire immediately. A reasonable minimum estimate is 1 kEUR per patent. Since there must be hundreds to thousands of patents in the pool, this easily results in a budget of hundreds of kEUR per year.
If some key patents are bought with hard money (though at cost), the cost per patent could be 10 kEUR. The number of truly crucial patents will be small — court cases are typically litigated over just a handful of patents — but knowing which ones a critical requires buying more.
The cost of stockpiling and maintaining the patents will easily climb to a million EUR per year. Unlike projects like the EFF’s patent-busting project, there is no meaningful way to crowdsource the idea. It needs hard money.
If the HPP goes to court, the legal costs are unpredictable, but the HPP must be able to handle them. This is where my reasoning becomes completely fuzzy. Could this work on a pro bono principle? If courts find trolls’ patents spurious, might they willing to force the trolls to pay costs? I find this highly problematic.
Is there any way for the HPP to make some profit to recoup all its losses? In principle, yes, by licensing to legitimate businesses. However, trying to make a distinction between non-legitimate and illegitimate players would add costs and make enforcement difficult.
And, more crushingly, the HPP would risk turning into a patent troll of its own. (“He who fights monsters should see to it that he himself does not become a monster”). It is difficult to see any way to make the HPP self-sufficient.
So where would the funding come from, then? I have no real idea. This was as far as I was able to get in one sitting.
So is the HPP idea even vaguely realistic? If not, would be worth developing from some other angle? If not, do we just have to adapt to life with the trolls?