The Problem Is Patent Quality, Not 'Trolls'

from the obviousness dept

A site called Prepaid Reviews reports that four US wireless carriers have been hit with a patent lawsuit from a company called Intellect Wireless. Prepaid Reviews writes that “If Intellect Wireless was a firm that bought patents with the implicit intent of lawsuit, I could talk about the need to reform patent law. But if these are original inventions by Henderson, he has a case.” I think this fundamentally misconceives the nature of the “patent troll” problem. The fundamental problem is about patent quality, not about motivations or business strategy of the people abusing the system. Advocates of patent reform like to focus on classic patent trolling firms whose only business is lawsuits because the extortionate nature of the transaction is most obvious in those cases. But if an otherwise-legitimate company gets an overly broad or obvious patent and proceeds to sue everyone in sight, that’s still a problem, even if the firm really was the first person to develop a product fitting the description of the patent. Consider one of the patents in this case, for example. While the patent makes a lot of claims and it’s difficult to decipher legalese, the patent appears to be claiming a monopoly on the concept of “visual voicemail” systems where you can see a list of all your voicemail messages, and information about who sent them to you, and then choose which messages you want to listen to first. This is a clever idea, to be sure, and it’s possible nobody had done it yet in 2003. But it’s also a pretty straightforward application of ideas that had been around long before 2003. I’ve been able to see a list of my text messages and decide which one I want to read first since long before 2003, for example. To a software engineer, voice is just another type of data, so “visual voicemail” is an obvious extension of “visual text messages.” In an ideal world, a patent examiner would have recognized this and rejected Henderson’s patent. But in the real world, the courts have made the rules for patenting so permissive that a ton of patents get awarded for obvious concepts. This would be a bad thing even if there weren’t any patent trolls around.

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Comments on “The Problem Is Patent Quality, Not 'Trolls'”

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LetsBlameThemALL says:

It's not just the cours...

It’s the patent office too. The examiners are over worked and over constrained with productivity requirements on them. So when someone sends in a 300 page patent document to them and they have 8 to review that day, guess what, it gets pushed through with a cursory review on the basis of if it’s invalid it will be knocked down.

An open peer review system would be nice to use here, where the existing system could be put in place but then the community would be able to examine the patent and call for it’s review. Perhaps some sort of tagging system and voting system, like digg. This would allow for items that get too much flack to go through a more thorough review and not place too much more of a burden on the overworked/underfunded patent office.

ReadingMan says:


Excellent post and exactly right. Trolling is repulsive, but is only a symptom of the real problem. The real problem is an overworked, understaffed, and permissive Patent Office trying to apply vague guidelines in areas in which they are not conversant. Fix the threshold for novelty and most of the problems disappear.

Word says:

Wait a second

The fundamental problem is about patent quality, not about motivations or business strategy of the people abusing the system

I thought the purpose of patents was to promote science and the useful arts. If true, wouldn’t that mean that a perfectly ingenious patent, if it’s not being used and is held purely for holding others ransom, is still a major problem and outside the scope of why we allow patents in the first place?

mjr1007 says:

Not the only problem

The real problem is that as Adam Smith stated, “monopoly is a great enemy of good management”. In the end, it doesn’t really matter how well run the patent office is, granting a monopoly for an (un)limited time will not promote the useful arts and sciences.

This site also seems completely one side against the patent holder. About a month ago Intel was sue for infringing on a patent from the University of Wisconsin.

Of course the grand daddy of all claims was the intermittent windshield wiper.

The system is too cumbersome and burdensome. In the end like most things in our legal system, it’s only the lawyer who win.

It would be nice if this site a least acknowledged the other side of the argument though. It doesn’t really seem to matter which side of the argument you’re on, there is abuse.

The real answer is open licensing. Allow anyone and everyone to license any and all IP for a small percentage of the selling price of the product. IP holders could then go to an arbitration board if they are unhappy with their cut. The manufacturers could not be held hostage, like in the blackberry case.

Just my USD 0.02 worth

angry dude says:

Re: Not the only problem

“The manufacturers could not be held hostage, like in the blackberry case.

Just my USD 0.02 worth”

take you shitty coins back – they are fake

In RIM case they were offered a cheap patent license initially, but refused to talk to small patent holder because of their corporate arrogance (while enforcing their own junk patents againsts other manufacturers)

Do some research next time

mjr1007 says:

Re: Re: Not the only problem

Angry Dude (AG) wrote

“The manufacturers could not be held hostage, like in the blackberry case.

Just my USD 0.02 worth”

take you shitty coins back – they are fake

In RIM case they were offered a cheap patent license initially, but refused to talk to small patent holder because of their corporate arrogance (while enforcing their own junk patents against other manufacturers)

Do some research next time

End AG comments

Wow AG you picked the right name.

You completely missed the point.

I wasn’t trying to adjudicate the case here. I was merely pointing out that if they paid a universal licensing fee, they could not be threatened with their business being stopped. If they have patents and others have patents they could go to an arbitration board to decide their cut without business interruption hanging over their heads.

Quite frankly I really don’t care which way the case played out because it’s just an other example of how broken the patent system is.

Now take a breath.

Disgusted Dude says:

Re: Re: Re: No proposal for 'cheap royalties' can be considere

MS keeps trying that approach on their ‘RAND’ licenses. It must be coincidence that MS only has one competitor in most markets that it has not already driven, sued, or tricked out of business by signing NDAs or making commitments, then unilaterally utilizing the other company’s code and ideas without compensation.

That competitor is open source. MS has tried product dumping, price reductions, FUD, threats of lawsuits, false advertising world-wide, forum-shopping for lawsuits against Linux vendors, purchasing open-source companies in order to get their products off the market, and several versions of astro-turfing to defeat Linux and open-source.

All have failed.

The only thing that seems to work for Microsoft to any useful extent is to get a whole bunch of overly-broad, vaguely-worded or standards-critical patents, then offer them only on ‘RAND’ terms that preclude their use by open-source-licensed products/projects. These terms include prohibitions on sublicensing, ‘minimal royalties’, cross-dependencies on other MS non-released protocols/patents/copyrights, mandatory NDAs with MS etc.

I’m quickly concluding that anyone making recommendations for ‘cheap royalties’ as a ‘fix’ to the US patent fiasco, is actually a Microsoft astro-turfer or a Microsoft shill that has just not yet been ‘outed’. Such people are unlikely to be simply uninformed because no-one can be that naive in today’s world – there’s just too much written about the US patent problems on the internet.

In short, the ONLY real competitor of MS products that is still on their feet and that keeps MS even partway honest is the open-source community and MS is on a vigorous campaign to ‘fence in’ the open-source threat using various types of patent-license terms, sub-licensing restrictions, etc.

The US does not need patents on software – software is already quite adequately protected by copyright. The US does not need business patents – business patents are not tangible items and should therefore be non-patentable.

Mike (profile) says:

Re: Re: Not the only problem

In RIM case they were offered a cheap patent license initially, but refused to talk to small patent holder because of their corporate arrogance (while enforcing their own junk patents againsts other manufacturers)

Angry dude, of course, leaves out the fact that the “small patent holder” was holding patents that were on the obvious idea of combining email and wireless service, which has since been invalidated by the USPTO.

Robert B. says:

patent trolls

Frankly, I am not bothered by the activity of patent trolls.

I am an independent inventor with several granted patents.

Several years ago I could not get funding to start a company based on technology from the first patent granted to me, so finally I decided just to sell the patent. I did a demo for 19 different companies in the Silicon Valley Area.

The only result was that within a year or so, two of the companies I had demo’d for started selling products which included exactly what I had patented and showed them. They are two of the largest and best known companies in the industry. When I complained—on paper, through a lawyer—to one of the companies, the only response was a strongly worded threat. When I called up the legal department of the other company (for which I had done three different demos), I received a far nicer response, but they, too, eventually denied infringing. These products did the same thing my demo’s had done, and in the same way. And that was a clear infringement of my patent. I had already been granted a patent and they knew that. I do not know whether their copying was accidental or intentional, but it was certainly real. My attorney told me that it probably would cost three to five hundred thousand just to get the case into court. I did not sue.

Soon after, I was lucky enough to sell the patent to a company that had never seen a demo, and they did well with it. It was the foundation of products that have brought more than $200 million in revenues over the past seven years. That company did eventually take a competitor to court about infringement of my patent, and won. But they did not attack the others who, by then had dropped their infringing products. I had sold the patent for a few hundred thousand and was glad to get it, even though I felt sure it was worth more.

The real reason that many of these companies complain about patent trolls is that the trolls have the money to take them to court. I didn’t. But I really never expected to have to take them to court. I just wanted to make a decent deal.

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