Per the last few paragraphs of the article, I've been thinking the following ought to be an adequate defense against some of these massive patents like the Lodsys patent: You claim your patent has been infringed upon by hundreds of people. We can show that many of these hundreds of people have never heard of your patent, or any subsequent licensing of your patent, and implemented the patented idea themselves. Therefore, by virtue of this repeated and numerous recreation of your patented idea, it is clearly obvious.
Alas, hammering this into a legally rigorous argument would be quite a challenge, but in general the very idea that hundreds of people could be in violation of your patent without any sort of communication between themselves for the purposes of violating this patent, or any sort of trail back to the patent holder, shouldn't actually be possible.
Actually, it would be very possible for a patent to shape the industry without anybody knowing. Ideas spread quickly, and the better the idea, the faster it will spread.
Say AntiLodsys invents micro transactions - which, for the purposes of this post is a non obvious technology that wouldn't have been invented by anyone else anytime soon - and patents a specific implementation of it. Unlike real Lodsys, which bought a junk patent and claims it covers every piece of software that networks, AntiLodsys actually invented something useful, which has value.
Sony, Microsoft, IBM etc are given presentations by AntiLodsys, demonstrating the system they've come up with. They all think it is fantastic, and license the technology.
From this point on, micro transactions will be seen as the direction that the industry is going in, and AntiLodsys is some obscure technology company that most have never heard of.
From there, a whole flood of smaller companies start using micro transactions, violating the patent, and a few years later, AntiLodsys starts sending out legal notices to companies violating its patent. The industry cries foul, because the whole idea of micro transactions is seen as obvious, the way the industry was going, etc. It's painted a patent troll, trying to steal bread from the table of hardworking independent developers.
So there's a situation where, if one accepts the premise of patents to begin with, a company nobody has heard of actually does have a legitimate claim.
"A new paper on "The Myth of the Sole Inventor" by Mark Lemley, a professor of law at Stanford, reinforces Mr Sanchez's point.
[S]urveys of hundreds of significant new technologies show that almost all of them are invented simultaneously or nearly simultaneously by two or more teams working independently of each other. Invention appears in significant part to be a social, not an individual, phenomenon. Inventors build on the work of those who came before, and new ideas are often "in the air," or result from changes in market demand or the availability of new or cheaper starting materials. ..."
It's very common that ideas multiple people in the same time throughout the world, and that multiple businesses are working on it in the same time. Even the light bulb was invented by many people in about the same time, without knowledge of Edison doing the same.
The world consists of 7 billion people. Surely, quite a few of them manage to see where some technologies are going and try to work on the next step in the technological progress.
Also, don't forget that as human beings, we've always used prior knowledge to improve ourselves and our technology. No technology can be invented in isolation from other technologies right now. They are all invented in the context of technology that has already existed.
Patents don't seem to account for that. They act as if technologies are born in isolation, and also they act as if only one person in the whole world (or country) can invent something at a time. Both are flawed concepts.
Check out this video here about how inventions are born:
I'm not arguing that the scenario I painted was the usual scenario, or even common. I was just putting an example together to show how his defense would not work in principle. That is, a legitimate patent scenario where the defendants were infringing without any knowledge of the patent existing.
Basically, I was trying to point out that wide infringement without knowledge of a patent does not a priori mean a patent should be invalid.
Actually, I think you're right about the way invention usually happens. Software patents are by far a net loss for the industry, and I'm against them. I just like to reply when I see what seems to me to be a flawed argument, whether I agree with the conclusion or not.
The purpose of a patent is so that the original inventor can make money from his invention whilst not having to keep the actual invention a secret. Patents have a time limit (not sure what that is) in which the inventor gets to make his money before the invention is open to society.
Maybe we should ask to change the law to say that because of the nature of software and the rapid change of growth in emerging technologies, the length of time a software patent owner gets to generate money from his invention is limited to a much shorter length of time, say 1 or 2 years. This way, legitimate patent owners as per your example still have time to generate income and establish themselves as market leaders in whatever technology, but there is much less incentive for people to patent troll, since the patents aren't intrinsically worth as much.
Also, perhaps you shouldn't be allowed to sell patents on to other people. That seems completely against the spirit of the whole thing - I should only be allowed to license you my patented idea. If I sell you my patent, does that mean you came up with the idea, suddenly? Buying and selling patents is surely only for evil purposes...
The problem with that argument is that the world in which scores of people are spontaneously re-inventing the same thing, is not the same world in which that invention was made. It's entirely possible for something to be non-obvious when it is invented, then to become completely obvious later.
Alas, hammering this into a legally rigorous argument would be quite a challenge, but in general the very idea that hundreds of people could be in violation of your patent without any sort of communication between themselves for the purposes of violating this patent, or any sort of trail back to the patent holder, shouldn't actually be possible.