Congressional Research Service Takes On The Question Of Patent Trolls

from the good-research dept

As we've discussed in the past, the Congressional Research Service (CRS) produces tons of research for Congress -- much of which never sees the light of day. In general, CRS is considered extremely competent and not driven by political and partisan food fights. Reports that come out of CRS usually seem to be careful and thorough. It's just that we rarely get to see them because, even though they're technically in the public domain, they're not automatically released to the public.

Some do get out, however, and the Secrecy News blog has a few recent reports, all of which are fairly interesting, including one on Presidential claims of executive privilege (pdf). However, for folks around here, the one that may be even more interesting is CRS's exploration of patent trolls (pdf and embedded below), the problems they create, and some possible ways to deal with the problem.

In typical CRS fashion, the report is pretty straightforward, laying out the arguments in a fairly objective way, without taking any particular sides. Even so, it does do a pretty good job of objectively portraying some of the problems with patent trolls, which the report (mostly) refers to under the more diplomatic term "Patent Assertion Entities" (PAE) -- though, it does discuss the "patent troll" term a few times. The report makes repeated references to an awful lot of the excellent research that's been done in the past few years on the subject, including from Bessen & Meurer, Mark Lemley and Colleen Chien. It also relies heavily on the excellent FTC report on the problem of patent trolls, which we discussed last year.

In terms of what to do about the harm caused by patent trolls (and the report notes both potential beneficial aspects and negative ones), the report discussed the recently introduced SHIELD Act, which would aim to put an increased legal burden on trolls who sue indiscriminately against parties who clearly are not violating the patents in question. However, it also suggests a few other possible methods of reform, including carving out different rules for tech patents (though, it admits that might run afoul of some international trade agreements), better notice (i.e., better clarity on the "boundaries" of patents) and my favorite: figuring out ways to reduce the overall "leverage, hold-up and settlement pressure" that leads to patent trolls regularly getting their way, even when the patent is bogus.

All in all, it's a worthwhile read, and at the very least a useful index of some important research in the field.

Also, randomly, I'm pretty sure (though not positive) that I used to hang out with the author of the report back in college, though I lost touch with him many years ago. Small world.


Reader Comments (rss)

(Flattened / Threaded)

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    Gothenem (profile), Aug 28th, 2012 @ 10:46pm

    A great step in the right direction. Lets hope that Congress listens to the report and realizes the serious problem that Patent Trolls are, and how they stifle innovation instead of promoting it.

    Though I am worried that, with altering tech patents affecting trade agreements, congress will be resistant to changing things on these grounds, this definitely seems like it could lead to more positive patent reform.

     

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    Anonymous Coward, Aug 29th, 2012 @ 12:18am

    so that's what PAE kernel means!

     

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    Brendan (profile), Aug 29th, 2012 @ 12:27am

    What might solutions for the pressure look like?

    My thoughts are that the risk isn't big enough for the "PAE" to care about the legitimacy of their claim. If we forced frivolous aggressors to cover legal costs for the defendant, they might consider the lawsuits more caeefully before moving forward.

    Current system makes it most profitable to throw it all at the wall and see what sticks. We need to change the incentive structure.

     

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    Anonymous Coward, Aug 29th, 2012 @ 1:06am

    'leads to patent trolls regularly getting their way, even when the patent is bogus.'

    would it be better if it said 'even when the CLAIM is bogus'?

     

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    Beech, Aug 29th, 2012 @ 1:20am

    Great

    Awesome. Too bad congress isn't known for listening to "data" or "proof" or "evidence" or even "anything that doesn't come stapled to a campaign contribution check."

     

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    That Anonymous Coward (profile), Aug 29th, 2012 @ 2:04am

    "Also, randomly, I'm pretty sure (though not positive) that I used to hang out with the author of the report back in college, though I lost touch with him many years ago. Small world."

    ZOMG MIKES BEEN SETTING UP OTHER GOOGLE SHILLS JUST WAITING TO POUNCE ALL THIS TIME!!!!!!!!

    /s

    Someone had to do it, why not me?
    Now the grownups can talk.

     

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      Anonymous Coward, Aug 29th, 2012 @ 5:40am

      Misleading Headline

      Headline should be, "Congressional Research Author Tainted by Tangential Association with Patent Abolitionist Radical"

      Entire Congressional Research Service objectivity called into question. House Majority Leader Eric Cantor calls for privatization of the organization; puts forward the Cato Institute as replacement body.

       

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      Wally (profile), Aug 29th, 2012 @ 7:30am

      Re:

      "ZOMG MIKES BEEN SETTING UP OTHER GOOGLE SHILLS JUST WAITING TO POUNCE ALL THIS TIME!!!!!!!!"


      With the juxtaposition of your profile name, That Anonymous Coward, makes more funny ^_^

       

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        That Anonymous Coward (profile), Aug 29th, 2012 @ 5:39pm

        Re: Re:

        I was just surprised I beat the regulars to it.
        I guess its less fun for them if someone else gets the jump on them, then there isn't a 10 page whine session about how Mike won't answer questions, is a shill, etc etc etc...

        Sometimes to beat the troll, one must troll first

         

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    That Anonymous Coward (profile), Aug 29th, 2012 @ 2:09am

    Grownup time...

    It really is a pity more of these reports are not out where people could see them.
    It would be nice for people to see the balanced reports on these topics that Congresscritters often decide to ignore in favor of irrational reactionary or quid pro quo satisfying law making.

    Finding balance in anything these days is rare, and more is the pity to society as a whole.

     

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    DMNTD, Aug 29th, 2012 @ 4:30am

    I dislike that term..."small world"....that's it.

    P>S> Die trolls.

     

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    abc gum, Aug 29th, 2012 @ 4:57am

    Wait - an unbiased study of the patent system with one of its conclusions being that the non practicing entity is a problem?

    But, but .. pirates!!!1111

     

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    Wally (profile), Aug 29th, 2012 @ 7:23am

    Mike Mansick, thank you for writing about the CRS. They are truly one of the only congessional entities that the public can trust. I once read in a Popular Science Magazine article about how they are almost completely ignored in actaul science matters.

    I cannot remember what they were ignored about except that it had a lot of DNC people in congress who were buying into green energy. Whenever a some of the outlandish claims these people made were called into question , the CRS data proving their theories wrong was totally ignored.

    In fact if I recall, being a part of the CRS science division was considdered at the time to be one of Pop-Sci's worst jobs in science.


    I think that because of the public backlash against SOPA and PIPA, the CRS can now have their say in a very election-oriented congress.

     

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    gyffes, Aug 29th, 2012 @ 7:37am

    Side note: I spent 6 years working for several members of Congress (and a Committee) back in the early 90s. The bulk of the Congressmen (and women) I met were incredibly hard-working and conscientious representatives of their districts, if overly dependent on campaign contributions for their continued presence on the Hill.

    Having said that, I left when the Repubs took over and "comity" was replaced with "we're gonna do this and F*CK YOU for suggesting otherwise." (an actual quote from the staff director of a prominent repub congressman). It's allll been downhill since then.

    /sidenote

    I have great respect for the CRS' work. 'tween them and the GAO, you can usually get a pretty fair analysis of just about anything.

     

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      Pjerky (profile), Aug 29th, 2012 @ 10:11am

      Re:

      Would you care to name any names? That would be awesome to know who that quote came from. Personally I have seen that as the prevalent attitude in Congress for years.

       

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    Anonymous Coward, Aug 29th, 2012 @ 6:52pm

    Patent Abolition

    So how come patent abolition was not on the list of fixes for the patent system? That is the only thing that is really going to fix the patent system. Everything else is just tinkering at the edges.

    Where can the people find a politician who will stand up for what is right instead of selling out to special interests, such as the patent bar?

     

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    Ritz, Sep 4th, 2012 @ 9:32am

    Patent Abuse

    I think congress needs to put a law regarding patents because it's becoming ridiculous.Companies are trying to patent everything even the air we breathe.Someone is now patenting the use of hyperlinks and inserting images on the web.

    This patent law is making things difficult for business and innovation.Someone will start claiming patents for HTML and we shall all be required to put our websites down.Stop It Now

    This is just not right !

     

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