Lamar Smith Wasting Time Trying To Define Patent Trolls

from the trolling-not-necessarily-the-issue dept

Rep. Lamar Smith has been working hard to change laws in all three branches of intellectual property — and all of his proposals seem to make those IP laws even worse than they already are. For copyrights, he wants to expand the DMCA. For trademarks, he wants to get rid of many exceptions for use of trademarks. For patent reform, while coming up with a few good proposals, most of them are likely to make the system much worse. On that front, Smith held hearings today to see if Congress could come up with a working definition of a patent troll. While it’s good to see Congress recognizing that patent hoarding can hold back innovation, defining just what a patent troll is doesn’t seem like it’s going to help. The issue isn’t whether or not anyone is a patent troll, but whether the patent system is being used to hold back innovation. Trying to define what a patent troll is will simply confuse the issue, and lead companies to focus on avoiding the specific definitions of a patent troll, while trying to accuse every one they get into a patent lawsuit with of meeting the regulatory definition of patent troll. A much more important issue would be to focus on making sure the patent system is actually encouraging innovation.

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Comments on “Lamar Smith Wasting Time Trying To Define Patent Trolls”

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Blbpaws says:

Patent System

To be fair to him–though I agree with you–it’d be great if you guys here at Techdirt could give specific proposals, rather than belittling everything, as to where a complete overhaul of the patent system would begin, what specific changes it’d make, and how it would reward innovation yet foil trolling. It’s clear there’s tons of problems with the current one, but more specific examples of how to improve the system from you guys would make for more interesting reading.

Mike (profile) says:

Re: Patent System

it’d be great if you guys here at Techdirt could give specific proposals, rather than belittling everything, as to where a complete overhaul of the patent system would begin, what specific changes it’d make, and how it would reward innovation yet foil trolling

Hmm. We’ve done that a few times, and it doesn’t serve much of a purpose to do it every time. However, the core point is that first we should look at whether or not patents are necessary. If you’re bringing in gov’t intervention into a market, you should first have to prove market failure. Yet, real world cases have shown plenty of innovation in countries that had no patent protection (and, in many cases, shown innovation then decreased once patent protection was put in place). So, I think a better question isn’t how do we overhaul the patent system, but whether or not it’s actually needed if the market is functioning.

However, for many people, that’s not even a valid question, so if we have to rethink the patent system, we should go back to its Jeffersonian origins, where the purpose was only to reward major breakthroughs that were unlikely to occur without patent protection, and for which disclosure of the invention is likely helpful for future innovation.

Thus, the basics are pretty simple. It involves recognizing the two forces at work in patents, that offer both incentives on the one hand and disincentives on the other for innovation. Also, in many cases, the open and free market is likely to provide the rewards necessary to promote continuous innovation — and so patents should be awarded only in specific circumstances, rather than as the norm.


1. Add a test for obviousness (beyond prior art). Patents are supposed to be for “non-obvious” ideas, and the test is supposed to be non-obvious to those skilled in the art. That should allow patent reviews to involve input from those skilled in the art for a patent examiner to review.

2. Recognize that if multiple parties have created the same thing independently, than none should get patent protection — since it suggests the change was an obvious next step in the art, rather than a breakthrough that needs protection. Plus, at that point the market should be suitable to reward the better innovation.

3. Set up a system that allows for input from those in the space before a patent is granted, and when a patent is challenged. This means looking at more than just prior patents or journals as prior art. It also means not relying on patent examiners who may not really understand the space.

4. Patents should only be for things that have shown to actually work.

5. Since part of the point of the patent system is disclosure, patents must actually give enough information so that someone else can recreate the invention. If there is no benefit to disclosure (business model patents, for instance) than the patents shouldn’t be valid — as they’re too broad, and clearly don’t serve the purpose of adding to the general knowledge.

6. Shorten the length of patent protection, recognizing that markets change rapidly these days, and any head start is often enough to last long past patent protection.

7. Keep the system as first to invent, not first to file. First to file simply encourages more filing, rather than better filings.

8. Let the patent office (with outside input) review the validity of patents before courts rule on patent cases.

9. Do not fund the patent system from patent application fees (sets up a situation where incentives are in place to have more patents filed).

10. Patent examiners should switch from “when in doubt, accept” to “when in doubt, reject.” Patent examiner bonuses and promotions should not be based on how many patents they get through.

All of this should also help decrease the number of patents filed, as fewer bogus patents will try to get through. That solves much of the issues of the supposedly overworked patent examiner staff.

Anonymous Coward says:

Re: Re: Patent System

I agree with many of these points, in particular…

Item 2: is a rationale that has some promise.

Item 7: I too hope that the system does not convert to “first to file” like the rest of the world.

Item 10: Actually, “when in doubt, reject” is the mindset of many examiners. However, it’s the law and patent procedures that follow “when in doubt, accept,” which is especially trying when attempting to establish a prima facie case of obviousness. As much as many examiners would like to say, “this is obvious,” they can’t (well, there are ways but not necessarily as powerful.) It will be interesting to see the Court’s ruling in the KSR vs. Teleflex case on this matter.

Item 6: Reducing prosecution is something everyone wants to happen; however, there are many factors effecting this issue. Everyone wants the best search possible but with the given (usually unsubstantial) amount of search time alloted and the increased complexity of cases, this helps lead to “piece-meal” examination and/or a not-as-good-as-it-could-have-been search. Add to that the fact that there are those legal reps out there who (won’t admit it but do) drag out the case or pump a ton of related applications into the Office in hopes the Office will get tired of the case and just let the “invention” through. The influx of new examiners, creating more fees to charge applicants, and the attempts to throw money at examiners in hopes of solving the problem also doesn’t help either.

It will be interesting to see if reforms to or a complete overhaul (which is what’s really needed) of the system will happen before it all just comes crashing down into one complete unrecoverable mess.

angry dude says:

Mike's patently ignorant

“1. Add a test for obviousness (beyond prior art). Patents are supposed to be for “non-obvious” ideas, and the test is supposed to be non-obvious to those skilled in the art. That should allow patent reviews to involve input from those skilled in the art for a patent examiner to review.”

Now, Mike, think again about what you just wrote…

Those “skilled in the art” and othewise credentialed persons from academia and industry suiddenly start looking like complete idioits when some uncredentialed outsider comes up with some totally unexpected breakthrough.

Do you really think they would speak in favor of invention ?

Of course not, they would all hate the inventor and would try to invalidate the patent.

This is just basic human nature.

The obviousness of any independent invention MUST NOT be decided by industry (and even academia) insiders. Period.

The rest of your comments are equally foolish…

Mike (profile) says:

Re: Mike's patently ignorant

angry dude,

Let me get this straight… despite the fact that the patent system is clearly supposed to be only for non-obvious ideas to those skilled in the art, you would prefer that someone who doesn’t understand the space at all is the person in charge of approving patents? You don’t think that’s the least bit problematic?

Allowing those who understand the space to weigh in gives the patent examiner more information that can be useful. The examiner should obviously recognize the bias of people involved, but not allowing them to weigh in seems foolish.

Of course not, they would all hate the inventor and would try to invalidate the patent.

This is just basic human nature.

You have an incredibly dim view of human nature. Perhaps that’s why you’re so angry.

If what you say is true, why do peer review journal systems work? Based on what you say, no peers would ever allow new papers to get published because it would just “make them look like complete idiots.” Except (ooops, there goes your whole argument) that doesn’t happen.

The rest of your comments are equally foolish…

Considering the first point isn’t foolish, and you refuse to elaborate on any of the other points, we’ll just have to assume that perhaps they’re not so foolish. If you want to take issue with specific points, I’m more than willing to discuss them as I did with the point above.

If you prefer to just call me names, then please go somewhere else. It doesn’t add to the discussion, and it certainly does little to promote innovation… sort of like the patent system.

Dave says:

Patent Troll

Instead of defiining what a patent troll is, outlaw the offending behavior. A simple change declaring that the only ones with standing to enforce a patent are 1) the original patent holder, or 2) current patent holder who has a product in production that makes use of the invention.

This would reward the ones who did the innovative work, maintain a viable market for selling IP to those that will actually use it productively, but it would end the practice of just sitting on patents and suing.

Eric says:

Sorry it's not fast enough for you

Glad to see that the individual who started the discussion can be so easily distracted from it….

And it’s not a waste of time for Lamar Smith to ask for a working definition of a patent troll. Getting Congress to define a patent troll’s behavior is an important step in getting Congress to admit there’s a problem with the patent system. If there’s a such thing as companies or individuals “hoarding” patents, that implies that there should be a limit on the number of patents any company/individual can hold; the argument for which being that there’s a negative innovative or market effect from the practice of hoarding patents. And since the current patent system does not address this practice, the definition would further prove there’s a problem with the system. By obtaining a definition of a “patent troll” he’s automatically proven the system is flawed and in need of reform.

As a congressman, you can’t waltz into Congress and say, “Hey this system doesn’t work.” You’ll make more enemies than friends, and in general, affect nothing with your complaint. Nobody there cares about general complaints. You need to have a specific problem, some backing, and a cohesive argument; a precedent (or in this case a Congressional definition) is very effective in achieving all those things. Then you have a foothold and people begin to see what the real problem is.

Think of it like a self-diagnosis. There’s not a doctor out there that’s going to give you a prescription because you walked into his office and said “I have disease X.” He’s going to say “what are your symptoms?” and diagnose you himself. Then once he discovers you actually DO have disease X, he can prescribe you something.

Regardless of whatever else Mr. Smith has done, he is currently taking step 1 in reforming the patent system. Be glad that someone is even taking steps. Complain when efforts are not being made, or have failed. Do not bite the hand that’s at least ATTEMPTING to feed you.

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