Patently Absurd: Proposing a Change to Litigation

A number of companies in the USV portfolio are being sued over patents (e.g., Twitter). For a startup, such a suit is a huge distraction and potentially a major drain on financial resources. Even for large companies such as Microsoft, patent law suits are a real pain to deal with (see Brad Feld’s post on the latest involving XML).

Some folks have suggested doing away with software patents altogether as a way of addressing this problem. That strikes me as too dramatic a solution as I don’t believe that all software patents are evil. For instance, if someone were to spend years and lots of money to develop a new and improved way of recognizing images then it is not clear to me why that is less worthy of patent protection than say a new machine or a new drug.

As it turns out, whether or not this is currently protectable is actually a matter of great debate due to series of US Supreme Court rulings which are confusing at best (see this recent article from Ars Technica for background). With the existing system such a mess, it seems to me that changing how someone can litigate over patent infringment would provide a better solution.

Here are two changes to patent litigation that I believe would make things a lot better:

Restrict the choice of venue to the headquarter district of the defendant. That gives the defendant a leg up, but that is partially the purpose of this change. The key reason is to make it impossible to sue in such odd places as Marshall, Texas, which have established themselves as havens for patent suits.
Require each suit to start with an initial determination of responsibility for legal fees. The court would do a review of the law suit and of an initial response from the defendant and would use that to determine who has to bear the defendant’s legal costs should the defendant prevail. The court could take into account the relative sizes and financial strengths of the parties in addition to the apparent merits of the suit. This would make suing much more expensive for patent trolls over long shot patents, but would still give individual inventors with a strong claim a fair shake.

There are probably a number of reasons why this can’t be accomplished and if any lawyer is reading this I would love to know. But it seems to me to be a more promising direction for fixing the patent mess than yet another cut at interpretation.