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Comment by mnutt | Hacker News Reader

The problem that I see with the certificate of origination idea is that then the patent trolls will file for literally millions of certificates of origination. Then they'll just send you threatening letters asking for a settlement and you have to do the costly vetting process to decide whether or not their certificate of origination has merit. Most likely you'll just settle.

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A variant on this contributes to the problem. The mechanism is that person 'a' 'invents' X while working on something doesn't think its all that special, person 'b' also 'invents' feature X but they work at a place that has incentivized filing patents so they file a patent on it.

Now some time later person 'c' also invents X and gets sued by person 'b's company. (or the holding company that bought out person 'b's company's IP portfolio).

Engineers have been told to literally "file a patent on everything you do, regardless of how novel or patentable you think it is, let the lawyers figure that out." further, to protect themselves they pay 'bonuses' for filing. Its a strategy and it pays dividends in the current climate.

So I understand Marco's and others frustration here, I would be interested in clearly bogus patents that have been filed post 2005 (my thesis is that starting in 1995 the PTO was hit by a zillion new patents and it wasn't until 2005 that the examiners had become trained enough to recognize the obvious ones and discard them) I've done some expert witness work and found that the prosecution histories of patents show a significant improvement in the examiner's responses as you move from 1995 to 2005.

If there are many defendants, they could work together to find prior art. Crowdsourcing might also be an option - for example, ArticleOnePartners.com pays cash rewards to individuals who find prior art.

Mandatory arbitration (prior to trial) might also be an interesting alternative, especially with the burden of proof on the plaintiff.

The lawyers for the patent trolls are smarter than that, they aren't going to start with dozens of defendants, they are going to start with one or two, bully them into settling, and then use those settlements as precedent when they go after 4 other people... and hey, their patent must be valid, because look at these two guys who are licensing it already.... then they go after the next group (expanding the net each time like they did in those old 'she'll tell two people' shampoo ads).

Precedent counts for a LOT when it comes to resolving any legal issues, even if the precedent is settling, and the trolls know that and use it.

Settlements might make it easier to bully others later, but they do not provide legal precedent. Only an actual court ruling does that. And as senior/superior a court as possible.

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