Tuesday, September 06, 2011

A legal opinion on Paul Graham's Patent Pledge

I asked a real patent attorney in Silicon Valley for a legal opinion on the Patent Pledge. Specifically, I wanted to know if a company that signed up for the pledge would be harming itself in the future when it came to defending or prosecuting its patents. Here's the response.
Further to my email below, you asked about the “Patent Pledge” statement, and whether it would weaken their patent position. My short answer is “No.”
Under U.S. law, such a statement on its own (not part of a legally binding contract) would be primarily a public relations endeavor. It would not be binding on the entity making the statement, and the entity would be free to change its position at any time and assert patents as it sees fit. The statement also would have no legal effect on the enforceability and validity of the patents the entity owns. Also, the statement would have no effect on the entity’s ability to aggressively file patent applications.
I think there is definitely “bad” behavior by patent trolls, but it gets murky. What constitutes a troll? By way of example, what if company X had done the R&D, been the first to conceive and file a patent application on the idea, announce it at a technical conference, but then decide to not implement the patented feature in its current business model? Does X become a “troll” at that point? Should anyone be allowed to use the idea without paying X royalties, when they are directly copying X’s ideas? Maybe that is not what the author intended, but it is an effect of a rule like the author proposes. I think such a law would need to have a lot of conditions and exceptions, and it would be difficult to word-smith since it attempts to regulate patents more in terms of moral behavior, which is subjective in the eyes of the beholder.

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