Can The FTC And DOJ Do What The USPTO Won't? Crack Down On Patent Trolls

from the that-would-be-something dept

While the US Patent Office has officially declared its desire to put its head in the sand concerning the problem of patent trolls, it appears that other parts of the government aren't necessarily going to ignore the problem. The FTC and the DOJ are planning explore the issue with patent trolls at a public workshop next month (they use the currently popular term "patent assertion entities" rather than "patent trolls" but it's clear what they mean). And the indications are that they may be looking to use their power to crackdown on bad behavior, potentially even using antitrust tools:
"There's a possibility of competitive harm here," said Joseph Wayland, who served as the Justice Department's acting antitrust chief until last week, when he stepped down to return to private practice. Mr. Wayland said officials are devoting "huge energy, particularly at a senior level" to this and other antitrust issues surrounding patents.
This seems like a much more reasonable use of antitrust resources than some other recent activity.

Of course, the real irony here is the idea that the government may need to use its antitrust rules to crack down on patent abuse, when the whole reason that there's a "trust" problem in the first place is that patents are a government granted monopoly. So no one should be shocked to then see it lead to antitrust problems. Want to not have monopolistic activity? Don't hand out monopolies.


Reader Comments (rss)

(Flattened / Threaded)

  •  
    identicon
    Capt ICE Enforcer, Nov 26th, 2012 @ 4:03am

    Yeah Right?

    Forgive me if this sounds silly. Buy did a Patent Troll go after Hollywood big wigs. After all. The US government only works if Uncle Hollywood tells them to.

     

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      Richard (profile), Nov 26th, 2012 @ 7:13am

      Re: Yeah Right?

      did a Patent Troll go after Hollywood big wigs

      Yep - that would be Thomas Edison - which is why they ARE in Hollywood - rather than on the East Coast.

       

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        Mason Wheeler, Nov 26th, 2012 @ 10:08am

        Re: Re: Yeah Right?

        Edison was not a patent troll, as a major part of the definition is that patent trolls are Non-Practicing Entities. But Thomas Edison was producing his own films.

         

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          John Fenderson (profile), Nov 26th, 2012 @ 12:23pm

          Re: Re: Re: Yeah Right?

          But Edison did knowingly and willingly violate other people's patents. So, maybe not a troll, but just a hypocrite.

           

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    identicon
    out_of_the_blue, Nov 26th, 2012 @ 4:07am

    Whoa! Stop the internets! Mike proposes gov't action!

    Guess you're coming around to gov't anti-trust being able to do good even when what patent trolls do ain't explicitly forbidden by statute.

    Now, just apply the principle of doing good against Megaupload and other "file-sharing sites" who are definitely giving out infringing material that don't belong to 'em and they've not paid for in any degree but can only operate with a legalistic dodge that exploits loopholes but is immoral, and you'll be nearly round to 'blue's view.





    Every click for Mike "Streisand Effect" Masnick is a click for him!
    http://en.wikipedia.org/wiki/Streisand_effect
    Do your part as often as you can! Click early! Click often!

     

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      out_of_the_cue, Nov 26th, 2012 @ 4:13am

      Re: Whoa! Stop the internets! Mike proposes gov't action!

      Private interests not equal to public interests in those cases.

       

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      Anonymous Coward, Nov 26th, 2012 @ 4:30am

      Re: Whoa! Stop the internets! Mike proposes gov't action!

      I'm sorry OOTB.

      The Megaupload case has nothing to do with antitrust so is an invalid argument.

      Try harder next time.

       

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    That Anonymous Coward (profile), Nov 26th, 2012 @ 4:12am

    And do we expect that anything will actually happen?
    Nope.
    The heads of several patent troll firms have no shame in what it is they do. They fall back on the popular concepts of being poor folks being ripped off by these big mean players.

    Until there is a requirement for a patent holder to at least try to do something with a patent, the system will remain broken.
    Until there is some sanity in what is patentable, we'll keep having stupid patents issued with wildly broad terms that can and will be applied to anything remotely like it.

    IP is our most valuable asset, the problem is it is now a weapon not the tool it was intended to be.
    It has been marketed as a tool for destroying your rivals, keeping new concepts from reaching the market, and killing innovation.
    It is another way to make obscene amounts of money for doing nothing beyond getting stamped approved.
    Then like a pitcher plant they sit and wait for someone to arrive at an obvious or similar idea, then they start dissolving the hapless soul trapped in the legal quagmire.

    Companies now buy up patents, like kids trade baseball cards, hoping to have something that will be valuable. Everyone wants the Babe Ruth rookie card.

    Meanwhile some new innovative things will never happen because it isn't worth the risk. Some areas are so infested with trolls, no one dares to set foot into the forest of heavy patents... afraid they might cross an imaginary boundary owned by a troll squatting on the land waiting for someone else to plow the field and create something of worth and then extract the profits of others labors.

    One only need look at the landscape of smartphones, it is slowly shrinking. Fields of new ideas being left to go fallow, because the trolls control all of the land and will demand high tribute for you daring to innovate an "idea" they "own".

    When is the last time you heard about a ground breaking MP3 player? So many ideas owned by those who can keep their market share simply by making anyong with a new idea pay tribute.

     

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      Donglebert the Needlessly Obtuse, Nov 26th, 2012 @ 8:18am

      IP is not our most valuable asset

      Knowing how to make or do something is all well and good, but what is more valuable is knowing how to make something better.

       

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    Pangolin (profile), Nov 26th, 2012 @ 4:23am

    What to patents protect?

    Patents are designed to give a forced monopoly on a product or invention for a specified period of time to allow the inventor to profit from the invention - as a reward for their innovation.

    Assuming this is the "Right" way to handle it (and the jury is seriously out on that): I don't think anyone should be able to assert an old patent when they have no invention based on the patent.

    The "idea" is not what is designed to be protected. If it were, patents would not be publicly published, thus further protecting the idea.

    Here's an unrelated idea.

    Don't publicly publish the patents.

    Then if two entities - even one very much later - submit very similar patents you can invalidate the original via "independent invention".

     

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      Anonymous Coward, Nov 26th, 2012 @ 5:01am

      Re: What to patents protect?

      "Don't publicly publish the patents."

      *Facepalm* Just FYI, the whole patent system was set up so inventions would be revealed to the public in exchange for a limited monopoly. If patents stopped being public then that'd shred the last tiny slice of legitimacy the patent system has.

       

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        Anonymous Coward, Nov 26th, 2012 @ 5:16am

        Re: Re: What to patents protect?

        Don't publicly publish the patents

        ...shred the last tiny slice of legitimacy the patent system has.

        No... you could still make patents endure for the life of the inventor plus seventy years (or in the case of corporate or anonymous or pseudonymous inventions then a term of 120 years from the year of its creation). That would really shred the last slice of legitimacy.

         

        Even then, that limited time would still be better than trade secrets. Once upon a time trade-secrets were referred to as “quasi-property”, that is, a trade-secret was no right against the world. If you didn't contractually agree to keep a secret, you could tell anyone you pleased, or publish in the New York Times. The lobbyists didn't like that....

         

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          Richard (profile), Nov 26th, 2012 @ 7:21am

          Re: Re: Re: What to patents protect?

          Even then, that limited time would still be better than trade secrets.

          Or, to clarify, worse prospective patenter. Since a trade secret lasts forever they are always preferred to a patent except where it is clear that either:

          a) Independent invention is likely.

          b) The nature of the "invention" implies that the methods being patented will be easy to reverse engineer from the product.

          Thus the patent system manifestly fails to address the major issue that it is supposed to address - namely the publication of ideas that would otherwise be kept secret.

           

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        Forest_GS (profile), Nov 26th, 2012 @ 7:24am

        Re: Re: What to patents protect?

        It'd be best if all patents included blueprints. Most of them are too vauge to use without buying the real information from the patent holder. That should be illegal.

         

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          art guerrilla (profile), Nov 26th, 2012 @ 7:48am

          Re: Re: Re: What to patents protect?

          you know the USPTO *used to* require working models of the invention ? ? ?
          seems like a valid idea, wonder why it was dropped...

          oh, i know, to 'encourage' more (faux) innovations...
          *snicker*

          art guerrilla
          aka ann archy
          eof

           

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      identicon
      Donglebert the Needlessly Obtuse, Nov 26th, 2012 @ 8:28am

      Re: What to patents protect?

      I think not publishing is a valid suggestion.

      With everything developing so quickly, does anyone actually go to published patents as a way of actually finding a solution?

       

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      John Fenderson (profile), Nov 26th, 2012 @ 12:26pm

      Re: What to patents protect?

      Don't publicly publish the patents.


      Ummm... the entire reason for patents is to stop people from keeping their discoveries a secret. If patents aren't published publicly and with enough detail to replicate them, then there is no reason to have them at all.

       

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  •  
    identicon
    Anonymous Coward, Nov 26th, 2012 @ 4:56am

    Other than the problem of issuing crap patents in the first place, how can the USPTO crack down on patent (patent assertion entities)trolls?
    Does the USPTO run the patent courts?

     

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      That Anonymous Coward (profile), Nov 26th, 2012 @ 5:22am

      Re:

      Step 1 would be admitting they exist and are bad.
      Step 2 would be altering the system, we do have several patents for teasing a cat with a laser pointer and making a PB&J sandwich.

      When the people incharge refuse to even acknowledge there is a problem, it makes it harder for there to be any changes made to a broken system.

       

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    Anonymous Coward, Nov 26th, 2012 @ 4:56am

    ' Want to not have monopolistic activity? Don't hand out monopolies.'

    stop bringing common sense into the conversation. we're talki9ng about the government, here and, of course, all those that gain financially because the government does these ridiculous things. those responsible for starting this muddle should be penalised as well!!

     

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    EZ as 1 2 3, Nov 26th, 2012 @ 5:10am

    This should be self obvious by now

    The FTC and DOJ's only concern, is protecting big business. Big business doesn't like patent trolls coming out of left field, and knocking them over the head for hundreds of millions of dollars. Therefore, the FTC and DOJ only want to protect big businesses, so only them who has the authority to hit rival competitors over the head for hundreds of millions of dollars.

    In other words, the FTC and DOJ simply want to cut the 'little guys' out of the patent wars. So no, this will in no way solve the problem of patents stifling innovation.

     

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    identicon
    out_of_the_blue, Nov 26th, 2012 @ 5:13am

    Limited "monopolies" of a patent here and there are fine.

    A point I didn't hit prior: It's accumulation and concentration that's the problem, Mike. These are sheerly grifters out for fast bucks without earning it.

    It's simply old wisdom that you kids are too "smart" to know: BIG IS BAD. It's also BAD to try for unearned income: TAX THE HELL OUT OF UNEARNED INCOME TO STOP SUCH ABUSES.






    Support Mike "Streisand Effect" Masnick's proprietary interest!
    http://en.wikipedia.org/wiki/Streisand_effect
    He innovated the term all by himself! He alone! It's HIS!

     

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      identicon
      Some Guy, Nov 26th, 2012 @ 5:34am

      Re: Limited "monopolies" of a patent here and there are fine.

      Seriously, what the hell is the point of your sig?

      Are you asserting that Mike claims some sort of IP right over the term "Streisand Effect"? If so, citation please: it would seem out of character, as that's the sort of lunacy he usually decries in others.

      Or are you criticising his claim to have coined the term? Assuming he did coin it (and I've seen nothing to suggest otherwise), I can't see anything wrong with his saying so, unless he's being smug, big-headed, or petulant about it; again, citations would be good.

      Or if you assert that he did not in fact come up with it, please share your sources with us.

      Ta everso.

       

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      identicon
      Anonymous Coward, Nov 26th, 2012 @ 5:42am

      Re: Limited "monopolies" of a patent here and there are fine.

      IT'S THEM SHEERLY GRIFTERS WHAT 12-POINTED SLIPPERY DAN!

       

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      art guerrilla (profile), Nov 26th, 2012 @ 5:43am

      Re: Limited "monopolies" of a patent here and there are fine.

      ole blue, you *almost* got it *mostly* right:
      it is only 'old news' that 'big equals bad' if you don't pay attention to our last couple hundred years of his story where -in fact- 'big equals good'...
      now, it is my personal opinion, that any time an organization gets beyond the normal range of tribal sizes (say, 20-200), then the organization begins breaking down from stunted democracy, toxic secrecy, and lack of accountability...
      the internal checks and balances are then gamed by the players who have the juice (and/or borderline personality)to hijack the system to their favor...
      that essentially describes our whole crony-capitalist system at the present time... patent/copyright trolling is only a subset of the overall problem...
      'solving' the patent/copyright trolling problems STILL leaves an inhuman and inhumane system in control...
      on the other paw, 'solving' the system itself will also align patent/copyright issues to the benefit of us 99%...
      art guerrilla
      aka ann archy
      eof

       

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      Zakida Paul (profile), Nov 26th, 2012 @ 6:00am

      Re: Limited "monopolies" of a patent here and there are fine.

      You need help.

      Do you think Techdirt could hold a whip round to gather up some funds to get OOTB the psychiatric help he so desperately needs?

       

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      btrussell (profile), Nov 26th, 2012 @ 7:15am

      Re: Limited "monopolies" of a patent here and there are fine.

      "He innovated the term all by himself! He alone! It's HIS!"

      So why are you using it?

      Shouldn't you be paying for a license?

       

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    avideogameplayer, Nov 26th, 2012 @ 5:18am

    Is this the same DOJ that's chasing its tail hoping to nail MU to the wall?

    This oughtta be funny...

     

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    Overcast (profile), Nov 26th, 2012 @ 5:35am

    "what patent trolls do ain't explicitly forbidden by statute."

    Maybe not, but if a hole was found in say.... tax code; it would be fixed in minutes, I suspect.

    This ability to be a 'patent troll' is contrary to the spirit of the law (to progress innovation) and can easily be looked at as a 'hole' - that needs patching, quick.

    So perhaps another agency *does* need to get involved, but then it's handing over "content control" to that same agency. Often, with government, the public is better off when nothing gets done anyway.

    Just saying if the laws are tilted towards big corporations, expect the "little guy" to disappear from the world of innovation. And in that world the "little guy" is the important one, with all the new and bright ideas. The big corporations style of "innovation" will be to regurgitate the same content OVER and OVER again - as evidenced by network television, for example.

     

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    That One Guy (profile), Nov 26th, 2012 @ 5:53am

    I can only assume a few of the big players have been hit over the head with one of their favorite toys a few too many times, and are now whining about it. And while I fully expect anything to come out of such a workshop to heavily favor big companies, I suppose the mere fact that the problem is starting to get more and more public attention is still a good thing on it's own.

     

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    Wally, Nov 26th, 2012 @ 7:11am

    USPTO

    Well, now that I think about it. Given Samsung now somehow holds a USPTO approved patent that they made stating the description as "External Audio Ports for connecting external audio devices" (Look that up on google's image search and see what you get), I'd rather leave it up to the FTC to decide everything. It's quite sad to see that happening. As for the DOJ, hell no!!! They're clueless...

     

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    staff, Nov 27th, 2012 @ 7:18am

    lies and damned lies

    “Patent troll”

    Call it what you will...patent hoarder, patent troll, non-practicing entity, shell company, etc. It all means one thing: “we’re using your invention and we’re not going to stop or pay”. This is just dissembling by large invention thieves and their paid puppets to kill any inventor support system. It is purely about legalizing theft. The fact is, many of the large multinationals and their puppets who defame inventors in this way themselves make no products in the US or create any American jobs and it is their continued blatant theft which makes it impossible for the true creators to do so. To them the only patents that are legitimate are their own.

    It’s about property rights. They should not only be for the rich and powerful. Show me a country with weak or ineffective property rights and I’ll show you a weak economy with high unemployment. Does that remind you of any present day country?

    Prior to eBay v Mercexchange, small entities had a viable chance at commercializing their inventions. If the defendant was found guilty, an injunction was most always issued. Then the inventor small entity could enjoy the exclusive use of his invention in commercializing it. Unfortunately, injunctions are often no longer available to small entity inventors because of the Supreme Court decision so we have no fair chance to compete with much larger entities who are now free to use our inventions. Essentially, large infringers now have your gun and all the bullets. Worse yet, inability to commercialize means those same small entities will not be hiring new employees to roll out their products and services. And now those same parties who killed injunctions for small entities and thus blocked their chance at commercializing now complain that small entity inventors are not commercializing. They created the problem and now they want to blame small entities for it. What dissembling! If you don’t like this state of affairs (your unemployment is running out), tell your Congress member. Then maybe we can get some sense back into the patent system with injunctions fully enforceable on all infringers by all patentees, large and small.

    Those wishing to help fight big business giveaways should contact us as below and join the fight as we are building a network of inventors and other stakeholders to lobby Congress to restore property rights for all patent owners -large and small.

    For the truth about trolls, please see http://truereform.piausa.org/default.html#pt.

    Masnick and his monkeys have an unreported conflict of interest-
    https://www.insightcommunity.com/cases.php?n=10&pg=1

    They sell blog filler and "insights" to major corporations including MS, HP, IBM etc. who just happen to be some of the world’s most frequent patent suit defendants. Obviously, he has failed to report his conflicts as any reputable reporter would. But then Masnick and his monkeys are not reporters. They are hacks representing themselves as legitimate journalists receiving funding from huge corporate infringers. They cannot be trusted and have no credibility. All they know about patents is they don’t have any.

    http://truereform.piausa.org/default.html#pt.

     

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