August 15, 2012 | By Adi Kamdar

#Patentfail: Tell Your Story

At the risk of repeating ourselves, the current patent system is broken. There's considerable evidence to support this claim, too—whether it's innovation-destroying patent trolls or certified "chaos" in legal battles among tech giants. More than 10,000 people have signed onto our Defend Innovation campaign, helpfully providing their thoughts on what works and what doesn't with the patent system, and what kinds of changes would really make things better.

These fixes can only come, however, with thorough evidence and analysis, which is why we have kicked off our Defend Innovation campaign. Another crucial ingredient is scholarship on the issue. Professor Colleen Chien of Santa Clara University School of Law is conducting a short Patent Demand Survey, and she's looking for your help in collecting relevant data. Professor Chien's research is an important step in understanding—and teaching others, including policy makers—the scope of the patent problem. It is crucial that those whose lives are affected by patents participate. We can't say it enough: we highly encourage those who have received patent demands to fill this confidential survey out.

We need entrepreneurs and engineers who have been affected by patents to tell their stories. Too often, startups are afraid (oftentimes for good reason) to publicly discuss the undesirable patent situations they find themselves in for fear of being targeted by trolls. And nearly all settlements with trolls require that alleged infringers sign nondisclosure agreements, meaning the world never finds out about the harm that has occurred.

We've been encouraged recently to see fixes to the system coming from within and without. For examples, private parties have developed tools to hack the system, making it work for engineers and companies who would rather not engage in the patent process. The Defensive Patent License (DPL) and Twitter's Innovator's Patent Agreement (IPA) are two prominent examples.

Two Congressmen also recently introduced the SHIELD Act, which creates a fee-shifting scheme for patent lawsuits: a plaintiff must have a good-faith believe that a defendant is infringing a valid patent, otherwise it must pay for the winning party's fees. Though we support this bill, it is an incremental change to a system that needs more sweeping reform. To that end, we've proposed our own additional suggestions on how to fix the system at https://defendinnovation.org.

It is exciting to see so many good ideas for revamping a broken patent system. Anecdotes serve to inspire, but thorough scholarly analysis is necessary too. If you or your business has been affected by patent demands, tell your story. When we are able to cite such scholarship in our legal briefs, our comments, and our blog posts, we make it that much harder for others to deny just how necessary it is to fix our broken patent system.


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