Patent Trolls Foster Innovation?
from the excuse-me? dept
A reader sent in a defense of patent trolls, written by (surprise, surprise) an IP lawyer. He trots out a number of different points which not only conflict with each other, but don’t make very much sense. He flat out says that “Far from stifling innovation, [patent] trolls foster it,” though he fails to actually back up that statement. He starts out by denying that patent trolls exist, because there’s no real definition for them, which seems like an odd way to go about defending them. Later on, he even tries to claim that critics are doing a lot more harm to innovation by using the phrase patent trolls, because it’s such a negative term — and it’s such a shame that public perception is against these poor trolls, because it makes it more difficult for them to settle lawsuits and get the hundreds of millions they deserver for, you know, not actually bringing anything to market. Then he says that there’s nothing wrong with patent trolls, because they’re legal — which completely misses the point. People know that patent trolling is legal, but they’re worried that it stifles innovation.
Then he gets to the meat of the argument, and trots out the standard defense of patent trolls. You see, inventors are only good at inventing, and they don’t want to be involved in bringing their products to market, so by selling their patents to patent trolls, they can realize an economic gain, and keep on inventing. This is a typical defense, but it completely misses the real problem. The success of a product usually doesn’t have very much to do with the inventions, but the innovation of how it was brought to market. That is, the actual invention, by itself, is pretty worthless. It’s the embodiment of the idea in a way that satisfies market demand that makes it worthwhile. He also completely ignores a number of other important points — which is that in almost every well known case of patent trolling, there never was any suggestion that the successful company “stole” the idea from the patent holder. They usually came up with it independently. It’s hard to see how there’s any justification for patent trolling when the company that brought the product to market successfully came up with the idea separately. In that case, they don’t owe any bit of their success to the patent holder.
As for the idea that the poor inventor doesn’t want to market his products, it’s hard to feel much sympathy there. We have very efficient mechanisms in this country to raise capital and create a company for building products. If you don’t want to do that, it’s a choice, but you shouldn’t be rewarded for not delivering to the marketplace. We have lots of ideas on how to serve our customers better here at Techdirt, but then we actually try to deliver on those ideas. We don’t sit and then try to sue someone else who does a better job serving the market.
His overall point is that this market liquidity created by the artificial scarcity of patents is as good thing. “Do not fear the patent troll. When considered according to the principles and purposes of the patent system, the beast vanishes, revealing a prince — a company that fosters innovation by providing patent marketplace liquidity.” But that’s the same fallacy that credits the DMCA for the digital music market. You can create liquidity in any market if you want, but that doesn’t mean the net benefit is increased. Air is a readily available commodity, so why not create a market for air. After all, it has tremendous value, and those who really want to breathe should pay up for it. By the logic of this article, it makes perfect sense, because those who own the air make money in selling it — therefore, it must be good. You’ll notice that it ignores the entire other side of the equation concerning all of those people who already had access to air (or an idea) and simply want to make use of it.