I’ve long had a problem with patent trolls.

For those of you who haven’t encountered this species before, what they are is this: people who file patent claims on processes (usually in software) and then use those patents to extort money from people trying to create tools and services in related areas.

PATENT TROLLING

Let’s be clear that — whatever your feelings about patents — these are not productive enterprises, but extractive ones:

“…the main goal of patent monetizers is to extract money from their victims without ever going to court.

‘The vast majority of defendants settle because patent litigation is risky, disruptive, and expensive, regardless of the merits; and many PAEs set royalty demands strategically well below litigation costs to make the business decision to settle an obvious one.’

“What’s going on here? One clue comes from the Lex Machina research. They found that technology industry cases constitute 50 percent of all patent suits; in the software industry, Internet-related patents were litigated 7.5 to 9.5 times more frequently than non-Internet patents. When cases actually go to court, they are often unsuccessful, but most lawsuits from patent assertion entities are settled out of court.”

Recently, a new form of patent troll has emerged, what I think of as the speculative troll. These are businesses that use tools of foresight and field research to find what others are thinking about, identify the potential patentable parts of their ideas, and file for those patents, with Intellectual Ventures being perhaps the classic example:

“Investigative journalism suggests that the company makes most of its income from lawsuits and licensing of already-existing inventions, rather than from its own innovation.”

In other words, it looks like the main thing speculative trolls do with the foresight and anticipation work they do is use it to force others in emerging fields to pay them money, not actually improve the world in any way.

PATENT TROLLS SLOW INNOVATION

Patent trolling is not a victimless practice. The business model demands lots of lawsuits aimed at anything that might be a target, since in many cases firms will settle rather than see their business bogged down in court. There are lots of stories of the chilling effect this has had in various parts of the tech industry; it has tended, others say, to make even bootstrap start-ups attempt to over-armor themselves legally, restraining their scope and slowing them down; and of course all this money spent on these sorts of lawsuits is money that serves no useful purpose. If you believe, as I do, that changing the world demands better thinking and experimenting with new approaches, the obvious conclusion is that patent trolls work to retard progress.

PRIOR ART BLOCKS TROLLS

The best fix would be to change patent law, or even restructure intellectual property law as a whole. But in the meantime, what can be done?

I have one small idea: Prior Art Conferences.

What’s “prior art,” you ask? Prior art is a legal term declaring a patentable idea is already in public domain, which basically means “people were already doing that, so no, you can’t claim to have invented it.”

Where prior art exists and is clearly documented, it’s hard for a troll to get a patent for that idea. What’s more trolls’ patents in related fields may be more easily defined and limited, potentially weakening their power in lawsuits.

When prior art ideas are in the public domain, they expand the range of action for everyone, since innovators and entrepreneurs are free to use those ideas to build new things. Done right (my understanding is; I want to be clear I’m not a lawyer) prior art can function as a sort of legal equivalent of open source code: it can define areas where everyone’s free to work on making things better.

MAKING PRIOR ART IN NEW FIELDS

So, one revolutionary possibility would be to find/create and document new prior art in emerging fields, before patent trolls have a chance to file patents on those ideas.

Lots of people are smart enough and have enough insight into their own fields to make some educated guesses about what might be coming and how it might work. Putting a mix of those folks together in a room with some good design thinkers, foresight experts and facilitators can well spark a whole range of new ideas. Get a documentation team with enough legal backing to post the ideas as proper prior art, and (it seems to me) you could create an engine for the preservation of free thinking on the frontier of innovation.

Prior art conferences could become rapid-fire experiments in securing collaborative ideas for the public domain, where anyone can use them. They might also help create some entirely new thinking, pushing forward the envelope of possibility. Finally, I think for anyone who enjoys thinking through tough problems, they’d be really fun.

You could have them as stand-alone events (a two-day conference in standard conference format), as small retreats (perhaps a dozen people focused on imagining and describing the future of a specific practice or problem), even as add-ons to existing conferences in design, technology and advocacy.

With the right process design and online support, these could perhaps become something that a great many people would be capable of doing well. With the proper online compilation and curation, the prior art could itself become a valuable resource to those working on solving problems — a tool chest of new approaches.

I’m not the right person to do this project. It might not even be as good an idea as it seems to me. But it wouldn’t be that hard to give it a try.

Want to talk about the idea? Got improvements on the concept? Willing to give it a shot? Hit Twitter w/ tag #priorart . Interested to see what people come up with.

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