To understand where my bias lies, let me first explain that I believe the patent system, as applied to software, is pretty fundamentally broken. I also don’t think that this idea will fix the underlying system, but merely change the way the symptoms are exposed.Whereas the penalties for patent infringement, with enhanced damages for willful infringement1, give the incentive to companies to not search patents before implementing code to reduce risk of liability, and
Whereas the lack of such searches both causes software patents not to improve the state of software development, causing companies to reinvent the wheel repeatedly, and contributes to a state of having multiple overlapping patents on a range of questionably novel processes, many of which with fairly well known2 prior art, watering down the value of the patent registry even for customers that do research patents, both of which contribute to general inefficiency, and
Whereas software developers are generally shielded from any personal liability incurred by infringing a patent while employed by a company, and therefore make different risk/reward decisions with regards to patents, mostly reinforcing the incentive to not search patents,
Therefore, be it resolved that we add enhanced damages to infringement when a proper search of existing patents for relevant patents has not been done, and
Be it resolved that we remove enhanced damages for willful infringement, under the new presumption that, based on having a proper search for patents, all infringement is willful, and
Be it resolved that the software engineers writing the code that infringes be held, along with their employer, jointly and personally liable for the damages for lack of proper search and infringement.
The corporate policy at my current and previous jobs both inhibit me from searching for patents, specifically to avoid risk of extra damages incurred by the company in case a lawsuit ever happens. This makes for a useless system that just adds legal risk and overhead, and employs a bunch of lawyers, especially in the form of patent trolls.
The idea for the above came from learning that some states’ anti-discrimination laws allow personal liability for sexual harassment. My hope is that the combination of changing the application of damages to invert the current head-in-the-sand relationship most companies have towards patents and making individual engineers have some skin in the game, will drive a sea change of patent registry grooming in the form of EFF's patent busting. Maybe at the other end we'd end up having a smaller registry of things engineers can actually use.
1 35 U.S.C. § 284 para. 2 (1994)
2 Within the industry, if not necessarily the patent office.