Software Patent Defense for the Little Guy

It is no secret that the end of the software patent détente has come. It seems like all of the big players in software are suing each other these days [1].   All of these companies have big budgets for lots of lawyers and many patents with which to threaten each other.  But what happens to the little guy who gets sued or even just  threatened with a suit over patent issues?  Well, considering the high cost of fighting such suits, the risks involved, and the lack of counter-suit options, that business owner generally rolls over and pays a licensing fee to the accuser,whether it is truly warranted or not, or they simply stop the potentially infringing business activity...sometimes the overall business organization survives such a blow, sometimes not.

What if the little guy had a patent portfolio to fall back on, to bring counter-suit to the accusing party or invalidate the held patent with an earlier patent or prior art?  What if the little guy had some legal help on retainer so that a simple threat would no have so much weight on its own?  What if there was a cheap way to patent software that would not only protect the innovator's interests but the interests of all of those in our industry that believe that implementation (protected under copyright) is much, much more valuable than ideas (protected by patents)?

There are over a million software engineers and computer programmers in the U.S. If 15% were convinced to give $30 a month (or their employers) that would be over $50 million a year for operations for such an entity. That is not including other donations that would be solicited, or fees payed by other interested parties such as hardware manufacturers, venture capitalists and the like.

Now will $50 mil. be the death knell for the pro software patent lobby or patent trolls? No, there are some very deep pockets that would fund the other side well, but it is a fine start.  My hope would be that the $50 mil. would mostly go to crushing trolls in court, sucking up tasty patents, building and maintaining a solid resource of precedent and prior art in this area and setting good precedent in the courts and perhaps a bit of lobbying with what is left...mostly, the point would be to give the little guys protection through sheer numbers that right now only the largest companies and organizations enjoy through the size of their tresuries.  A non-profit SMB NATO for deterring the patent-troll menace with its own patent arsenal and defense infrastructure.

So there are patent defense companies like Allied Security Trust, RPX and the Open Invention Network but these are for major players and/or have very limited scopes.

I'd love to see the patent system overhauled.  Bilski gets pretty far into defending folks from the overreaching grasp of bad patents but we could wait for decades for reform and wielding Bilski still requires substantial individual legal investment.  This is just my two cents on some positive action that can be taken today so that we can operate and innovate in an business environment with just that much less fear.