Maybe Patent Trolls Wouldn't Be So Hated If We Called Them Patent Elves
from the presto-chango dept
I’m not a huge fan of the term “patent troll” which I agree can be unfairly negative, and without a clear definition often leads to problems. Recently, it seems that the term is most often applied to “non-practicing entities” making some people think that the patent system is mainly abused by those operations. That’s a bit of misdirection. There’s just as much, if not more, abuse of the patent system done by large companies. If there were actual proof (still waiting!) that the patent system actually did lead to more innovation, then I can easily understand why a non-practicing entity that just licensed its works could make sense. Unfortunately, most of the evidence suggests that patents don’t actually lead to more innovation. In those cases, the only thing that non-practicing entities end up doing is hindering innovation.
However, Joe Mullin points us to a rather odd paper, suggesting that non-practicing entities are a good thing and should be called “patent elves” rather than “patent trolls.” Part of what makes this paper so odd, is that one of the writers works for that law firm that recently advertised that it wouldn’t work with patent trolls. Meanwhile, I guess it wants to let those “patent elves” in the back door.
As for the actual paper, it’s really not all that different from earlier papers that try to present non-practicing entities as a boon to competition and innovation. They’re all based on a few faulty assumptions, however. This latest one is basically a massive broken windows fallacy. That is, it basically states “if specialization is good, more specialization is better” in that it creates more economic activity. What it fails to do, however, is take into account how the market is distorted by that greater economic activity. Just as the broken window fallacy doesn’t take into account the hidden costs of what kind of economic activity would take place in the absence of the broken window, this paper fails to take into account the innovation that occurs in the absence of the patent-holding non-practicing entity — and simply assumes (falsely) that the patent holder is the key component in driving the innovation forward. Instead, it’s much more likely that the patent holder represents the broken window — a cost that detracts from more efficient economic activity, such as actually bringing a product to market where real innovation occurs.
Filed Under: innovation, patent elves, patent trolls, patents
Comments on “Maybe Patent Trolls Wouldn't Be So Hated If We Called Them Patent Elves”
Yeah, right
Then we’d just hate elves, too. What a bunch of crap. Why not just call them “patent fairy godmothers?”
My favorite quote from the abstract: “In fact, patents in the hands of non-practicing entities can increase competition, lower downstream prices, and enhance consumer choice.” Right. I’d like to see some examples of that “fact.”
We call them patent trolls for a reason
Because they are sickening and do no good.
If those non-practicing entities are activly searching for partners and promoting their patents to actually make products based on them, then I can agree they serve some purpose. But as it is right now, they do nothing but add to the cost of business.
The patent law should be modified to include a mandatory licensing clause, such that if the patent holder fails to develop and market a product within a certain period of time after patent application(5 years maybe?), the patent is automatically licensed to anybody who wish to make use of it at a preset rate. Another good modification to have would be a stature of limitation. If the patent holder does not respond to a patent infringment within 2 years that it becomes known, the patent hold is considered to have granted a license to the infringer.
Re: We call them patent trolls for a reason
Alternatively you can recognise this as a symptom of the wider failings of the patent system, and have wholesale reform rather than papering the cracks.
Re: Re: We call them patent trolls for a reason
Why even techdirt is bringing this issue for discussion is beyond me. As you mentioned, there was areason why that name was given and the behaviour of these patent trollers just goes fit that numenclature. Patent trollers are really not good, they stifle innovation and as this article pointed, the earlier we can make life difficult for them , the better will be for the advancement of the internet:Trolling For Dollars With Internet Patent (http://www.internetevolution.com/author.asp?section_id=562&doc_id=150187&F_src=flftwo)
Re: idiot punk
have you ever tried to approach a large tech manufacturer with the licensing proposal having a novel and useful technical invention in your hand (and a patent of course) ?
Try this once
Until then just STFU
Re: Re: idiot punk
Maybe your “novel and useful technical invention” isn’t all that useful or novel. Or maybe you should approach a smaller manufacturer. Or maybe you should have your ingenious device manufactured for you. Or maybe you’re full of crap, and have neither an invention nor a patent.
Then again, maybe the problem is that you’re an asshat.
Re: Re: Re: idiot punk
or maybe little techdirt punks should just shut up and listen to the real-life stories, not to Mike’s anti-patent propaganda
And asshat is not a legal term btw
there is no punishment in law for being asshat, but there is a one for being a patent infringer (as well as for lying to the court, falsifying evidence etc.)
Re: Re: Re:2 idiot punk
But you’ve never offered a real-life story, or even a single shred of evidence to support your claim of having patented a “novel and useful technical invention.”
I didn’t know that all words used in these comments had to be “legal” terms. But the punishment, in this case, is you’re stuck being you.
You can go back to your mother’s basement now.
Elves?
How about patent speculators?
Re: Elves?
“Patent speculators”?
Certainly accurate and basically non-pejorative.
Although I prefer “patent trolls” myself. You know, nasty creatures that lurk under bridges and extort from people trying to use the bridge.
It fails in one crucial way
It seems to think that an R&D firm who creates ideas and patents them are in the same league with those that buy patents and then sue everybody.
I think it’s a basic failure on the part of the author.
idiot punks
you have no f***** clue about the subject
Mikey is so full of shit his eyes must be brown
Re: idiot punks
Informative and well-argued as always.
Re: idiot punks
(singing along to the Ms. America Theme):
There He Is, Mr. Angry Dude..
Re: Re: idiot punks
Let’s try again:
(singing along to the Ms. America Theme):
There He Is– Mr. Angry Dude…
My solution
The problem isn’t non-practicing entities, or large companies, or any particular group as a whole.
The patent system is designed to encourage R&D spending by guaranteeing the exclusive right to market products with significant development expense. Proof is difficult, but strong indications are easy: as much as we all hate the pharmaceutical companies, and as much as they abuse patents, it’s pretty clear that patents drive R&D spending in pharmaceuticals. We can get deeper if necessary, but I can’t believe anyone would argue otherwise.
So the problem happens when someone has an idea — a good idea — that’s just slightly ahead of the curve, and requires little to no R&D expense. Hey, the industry’s going this way, I’ll patent the next step and become a troll. In that case, I get the payoff without performing the role that the patent system is designed to incent.
So how about some kind of maximum return on a patent? I know, it’s probably impractical to enforce, but as a thought experiment: what if we said “fine, be a patent troll — but your damages in any suit are limited to 100x your documented R&D expense, and expenses incurred in filing the patent do not count.”
Spend $10m developing a new drug or anti-lock braking system, be eligible for (up to, not guaranteed!) $1b in damages. Spend $50 on beer with some buddies coming up with nebulous software patents, be limited to $5000.
There are practical issues. But I think the general concept is a good one.
Are universities/colleges, federal laboratories, etc. “trolls”? As a general rule these are each NPEs.
Re: Re:
Are universities/colleges, federal laboratories, etc. “trolls”? As a general rule these are each NPEs.
Well, as I stated, I don’t think that NPE’s should be called patent trolls — and that big companies are often the worst abusers of patents, so this is a loaded question, isn’t it?
But, as for universities and federal laboratories, don’t you find it problematic that they’re using public money to lock up ideas?
Re: Re: Re:
“But, as for universities and federal laboratories, don’t you find it problematic that they’re using public money to lock up ideas?”
This is really a two part question.
Re federal labs, if an inventor is a federal employee then I have substantial concerns that his/her invention is even patentable given their unique role as an employee of a “sovereign”.
Re universities, I am not so much concerned that patent law is available, but that grant funding, coupled with Bayh-Dole, appears to be redirecting some research efforts from scientific inquiry into targeted research for facilitating tech transfer. I have recently noted the trend becoming even more disconcerting as universities enter into industry/university arrangements that are nothing more than using the university facilities as an “R&D” center for the private sector.
Possibilities
Patent Ogres
Patent Orcs
Patent Dwarves
Patent Skunks
Patent Weasels
Re: Possibilities
Patent Weasels! That nails it perfectly, and is much less insulting to the trolls.
Possiblities
In accordance with World of Warcraft theology, I think they should be called Patent Night Elf Hunters
Re: Possiblities
Patent Trogs…
Patents aren't the problem
Brooks has it right – patents CAN be good, and if you look, there are examples of them doing what they were intended to do. The problem is two-part:
1) A badly broken patent system that has government bureaucrats examining the patents, trying to push through as quickly as possible, rather than having real experts examine them and granting patents to real innovation, and
2) A totally screwed-up legal system that supports the people who abuse #1.
For an example of #1, google “Method of swinging on a swing”
As for #2 – well, is anyone really surprised? It’s symptomatic of our society as a whole.
Re: Patents aren't the problem
“For an example of #1, google “Method of swinging on a swing””
Some facts that may allay concerns the system is irretrievably broken. Inventor: 4 or 5 year old boy.
Father: Patent attorney in Minneapolis. Why filed: Per father it was to teach son a bit about patents and inventions. PTO screwed up?: Does anybody really believe the Patent Examiner was not aware of the situation and decided to help the father?
Now, if this was the “invention” of an adult who truly fancied himself the next Edison there is absolutely no doubt it would never have been issued.
BTW, this was not an inexpensive teaching lesson by father to son. Even though cost of preparing application was zero, PTO filing and prosecution fees through and including issue border on the outrageous. Of course, patent would never be asserted, will lapse in 3.5 years when maintenance fee is not paid, but son will have a nice document to hang on the wall of his bedroom.
Yes, the patent looks and is flaky, but in this instance I am prepared to cut the father and son and Patent Office some slack.
Re: Re: Patents aren't the problem
This is a dubious means of “teaching” anything, let alone patents. What was the father teaching, how to game the system?
And I’m not willing to grant the Patent Office some slack. They don’t have time to properly investigate applications as it is — so they should waste time and taxpayer money for one father to teach one child a dubious lesson?
This patent should have been promptly rejected — then both the father and the son would have learned something.
Re: Re: Re: Patents aren't the problem
The Patent Office is funded by the fees applicants pay to file and prosecute applications.
Re: Re: Re:2 Patents aren't the problem
Right.
The USPTO may get some funding from fees, but clearly not all of its funding. See this article in NetworkWorld: U.S. Patent Office gets funding increase.
Here’s a snippet:
The USPTO received President George Bush’s full funding request of $1.9 billion in a budget bill passed by the U.S. Congress in mid-December and signed by Bush the day after Christmas.
So, you still think the guy wasn’t wasting taxpayer money?
Re: Re: Re:3 Patents aren't the problem
Quick poll: How many people who posted comments on this subject have 1. Invented something 2. Filed for a patent on invention 3. Received a patent 4. Tried to get a large company to license patent?
Re: Re: Re:4 Patents aren't the problem
What, do you believe people have to pass some test to be able to discuss the problems with the patent system?
The original poster in the this thread is correct: Patents aren’t the problem. The broken patent system is the problem. So, how does your simplistic “test” help fix the problem? Or are you simply part of the problem?
Re: Re: Re:5 Patents aren't the problem
What, do you believe people have to pass some test to be able to discuss the problems with the patent system?
No, but I imagine his point is that one would have a more informed opinion about the subject if one actually has experience with the subject. It’s hard to put a lot of weight into an opinion that blasts the patent system if it comes from one who has no experience with the system.
Re: Re: Re:6 Patents aren't the problem
And that would be true if we were discussing how to file a patent application, and then how to license it to someone else. One hardly needs to be an inventor, a patent holder or a patent lawyer to see and discuss the obvious problems with the patent system, as it exists today. And I’m including the perverted legal process in the term “patent system,” as a huge part of the current problems can be laid at the feet of the courts, starting with the Court of Appeals for the Federal Circuit and the State Street decision.
So, explain again why one needs to have invented something, patented it and tried to sell it to take part in this discussion? Does this patent process also exclude democracy?
Re: Re: Re:6 Patents aren't the problem
No, but I imagine his point is that one would have a more informed opinion about the subject if one actually has experience with the subject. It’s hard to put a lot of weight into an opinion that blasts the patent system if it comes from one who has no experience with the system.
Actually, I would think one who has gone through the system and has a patent is a LESS reliable source of info on the subject, as s/he would be biased by a system that was used to his/her advantage.
Anyone who says you can’t criticize the patent system unless you have a patent is not worth listening to. I could equally say no one can criticize the patent system unless you have an economics background — but that, too, would be silly.
Re: Re: Re:7 Patents aren't the problem
Practical experience means nothing at Techdirt, where everything is just theoretical. Again, it would be interesting to hear from people on this post who have gone through the process of getting a patent and then actually tried to monetize it. Ironically, my guess it that many who had would say it had not been worth it, due to the expense, time expended lack of effectiveness that the patent gave them in the marketplace. If the patent system is broken, it is because it really doesn’t protect inventors…and unfortunately many are forced to pursue legal action…..but how many small companies can afford that?
Re: Re: Re:8 Patents aren't the problem
Exactly dude
techdirt is much like slashbot – a place for little tech punks to hang out
Unfortunately, large corporate thiefs have planted their stooges in both places and try to build grass-root support for their corporate agenda
And those large corporate thiefs do not want to abolish patent system, of course not – they just want to weaken it to the point that only large multibillion dollar companies can actually use it to their advantage
This fact escapes the mind of clueless lemmings on this board
Re: Re: Re:6 Patents aren't the problem
God forbid this site actually deal with practical experience. Its like being an adviser on sex or relationships when all you have ever done is masturbate. Everyone is an expert…..
Re: Re: Re:7 Patents aren't the problem
God forbid this site actually deal with practical experience. Its like being an adviser on sex or relationships when all you have ever done is masturbate. Everyone is an expert…..
I like how you didn’t even answer the point I raised, perhaps enforcing just how little it matters if you’ve used the patent system or not.
Please tell us why we should believe someone as biased as you, having a stake in making sure the system remains as it is? Wouldn’t you RATHER trust an impartial body who can study the issue through non-biased eyes?
And, can you let us know what economics training you have, since you seem to think that experience matters — I’m curious as to what yours is in the point that matters: economics (not inventing).
Re: Re: Re:8 Patents aren't the problem
My bias is that I have actually used the system. I have spent tens of thousands of dollars and invested years in getting my companies’ inventions protected. First of all, it is not easy and it certainly is not guaranteed that a patent will be granted. In most cases, all the time and money goes for naught. In the unlikely event a patent is actually granted you are then faced with the almost certainty that a large company will not acknowledge the patent nor agree to license it. Without the possibility of at least some sort of recourse that the patent affords, there would be no reason for many small companies to exist. I know your response always is “well if you had a good product then everyone would come to you anyway”. It quite simply does not work that way. Try going to a venture capitalist and telling them that your product is better than the version that Megatech is already selling and they will laugh at you…not because you are wrong…but that you would even think of trying to compete with them….when all they need to do it take your product and call it theirs. A patent gives you a fighting chance….and a chance is all it it.
Re: Re: Re:9 Patents aren't the problem
Come on, dude
Mikey is just a robot – an android programmed by one of those large corporate patent thiefs
Periodically he spews some chunks of nonsensical anti-patent gibberish saved on his memory chip
How can you argue with an android ?
Re: Re: Re:9 Patents aren't the problem
My bias is that I have actually used the system.
You ignored my questions. Nice work.
Let’s try again:
Please tell us why we should believe someone as biased as you, having a stake in making sure the system remains as it is? Wouldn’t you RATHER trust an impartial body who can study the issue through non-biased eyes?
And, can you let us know what economics training you have, since you seem to think that experience matters — I’m curious as to what yours is in the point that matters: economics (not inventing).
First of all, it is not easy and it certainly is not guaranteed that a patent will be granted. In most cases, all the time and money goes for naught.
I never said otherwise. Don’t put words in my mouth.
t. Without the possibility of at least some sort of recourse that the patent affords, there would be no reason for many small companies to exist.
That’s a ludicrous claim, proven if you look at the history of places without patents, where small companies are MORE likely to exist, and there are fewer big companies. Why? Because the lack of patents allows for *more* competition, and that keeps more small companies around, rather than allowing big companies to lock everything up.
This statement is simply incorrect and that’s proven by even the slightest historical analysis. For someone who claims you “know better” than anyone else, you are showing your ignorance.
I know your response always is “well if you had a good product then everyone would come to you anyway”.
I’ve never said such a thing. Bringing a product to market is incredibly hard work — but it’s the hard work of bringing it to market that matters, not locking down a patent.
Try going to a venture capitalist and telling them that your product is better than the version that Megatech is already selling and they will laugh at you…not because you are wrong…but that you would even think of trying to compete with them….
Then you hang out with the wrong VCs. Have you seen how much funding is going to companies competing with Microsoft/Google/IBM etc lately?
when all they need to do it take your product and call it theirs.
Another myth easily proven wrong by history. Plenty of companies copy, but it’s hard to catch up to the true leader in the space. Tons of companies copied Apple’s iPod, but they couldn’t convince people to buy them. Tons of companies have copied Google (including big ones like Microsoft), and even though independent reports say that Microsoft’s search is now equal to or better than Google’s, it still can’t get users.
Copying another company isn’t as easy as you make it sound.
You make a lot of unsubstantiated claims, you refuse to answer my rather straightforward questions, and you repeat a lot of myths.
And yet you somehow claim you’re credible on the subject? Sorry, you’re not fooling anyone.
Re: Re: Re:10 Patents aren't the problem
“Tons of companies have copied Google (including big ones like Microsoft), and even though independent reports say that Microsoft’s search is now equal to or better than Google’s, it still can’t get users.
Copying another company isn’t as easy as you make it sound.”
Mikey apparently doesn’t understand the difference between server-side and client-side technology
Google was on a server side from the very beginning and is doing well (it moved to the client side too after it became big enough to kick MShit ass on either side)
Netscape was on a client side and where is it now ?
Right, MShit killed it with their free bundled browser called IE which ripped off all the functionality of the Netscape browser
Re: Re: Re:11 Patents aren't the problem
Mikey apparently doesn’t understand the difference between server-side and client-side technology
Did you miss the part where we were talking about search?
Netscape was on a client side and where is it now ?
Netscape failed because of a lot of dumb moves by Netscape itself.
Have you noticed how the Mozilla foundation has been able to eat back into IE’s market share?
Oh, once again, angry dude won’t let facts get in the way of reality.
Re: Re: Re:10 Patents aren't the problem
“And yet you somehow claim you’re credible on the subject? Sorry, you’re not fooling anyone”
You are not fooling anyone with your credentials, Mikey
*Mike has a bachelor’s degree in Industrial and Labor Relations and an MBA — both from Cornell University*
Come on Mikey, I have 2 MS degrees (one of them in EE) and a PhD in Physics
not to mention the fact that I spent last 10 years in the trenches and witnessed first hand the rise and fall of IT in America
So who is more credible ?
Re: Re: Re:11 Patents aren't the problem
Come on Mikey, I have 2 MS degrees (one of them in EE) and a PhD in Physics
not to mention the fact that I spent last 10 years in the trenches and witnessed first hand the rise and fall of IT in America
Credibility isn’t about your degrees. It’s about actually being able to defend an argument with facts.
In your case, you have been proven to lie. And, when presented with facts, your response is to fling insults at everyone.
That’s not credibility.
Re: Re: Re:12 Patents aren't the problem
Run for US Congress, Mikey
Why are you wasting your time on this shitty blog ?
You’ll make a great politician
Re: Re: Re:7 Patents aren't the problem
AI -> “God forbid this site actually deal with practical experience. Its like being an adviser on sex or relationships when all you have ever done is masturbate. Everyone is an expert..”
So – patents are like sex.
Hmmm …. no wonder I feel like I’m being screwed.
Re: Re: Re:5 Patents aren't the problem
For the record, I have been through stages 1 & 2 at least twice (1. Invented something 2. Filed for a patent on invention). I don’t think you need to actually RECEIVE a patent to have experience with the system. You can learn quite a bit by digging through a patent repository in search of conflicts before filing your own patent.
Incidentally, I went through the process around 20 years ago – and at that time, the PTO actually seemed a bit more diligent about actually examining the applications.
I maintain my original argument: PATENTS are not the problem. The system that allows people to patent things like “Method of swinging on a swing” (#6368227) or “Method of exercising a cat” (#5443036) is a broken system – and the break, to me, CLEARLY resides at the examination level.
Set aside the argument about the lawyer helping his son learn something – what IDIOT at the PTO thought this abstract was patentable:
“A method for inducing cats to exercise consists of directing a beam of invisible light produced by a hand-held laser apparatus onto the floor or wall or other opaque surface in the vicinity of the cat, then moving the laser so as to cause the bright pattern of light to move in an irregular way fascinating to cats, and to any other animal with a chase instinct.”
Don’t play with your cat using a laser pointer – you’ll be sued!
Re: Re: Re:4 Patents aren't the problem
AI -> “Quick poll: How many people who posted comments on this subject have 1. Invented something 2. Filed for a patent on invention 3. Received a patent 4. Tried to get a large company to license patent?”
Nice try, but it fails the logic test. For example:
1) Have you ever been a politician running for office ?
2) Did you win ?
3) No ?
4) Well, I guess you shouldn’t have an opinion about politics then.
5) Maybe you shouldn’t be allowed to vote because you do not know what you’re talking about.
Get the drift ???
Re: Re: Re:3 Patents aren't the problem
Time for history lesson.
Back in early to mid 80’s Patent Office was basically reconstituted on a PAYG basis. Its receipts started to exceed expenses, so Congress being Congress decided to start siphoning off excess funds…and then even more until PAYG was no longer accurate. Litigation ensued to make Congress return the money, but Congressional action upheld (would you expect otherwise since it is darn near impossible to call budgetary matters into question).
This siphoning has been a sore point with the PTO and attorneys alike, so one of the provisions in the current bill re patent reform is to reinstitute PAYG and keep Congressional hands out of the PTO pot.
Re: Re: Re:4 Patents aren't the problem
. . . and keep Congressional hands out of the PTO pot.
Good luck with that.
Re: Re: Re:5 Patents aren't the problem
I daresay this is more likely to happen than having MM ever state that copyright and patent law are not as bad as he believes.
Re: Re: Patents aren't the problem
“Now, if this was the “invention” of an adult who truly fancied himself the next Edison there is absolutely no doubt it would never have been issued.”
I stand as prrof that this claim is false. I doubt it would have never been issued — I’d go further and say that there’s a better than even chance that it would be granted.
Re: Re: Re: Patents aren't the problem
“I stand as prrof that this claim is false.”
You are a young child and patented a way to swing?
Re: Patents aren't the problem
You really think that monopolies are better than competition?
As far as I know, history has taught me that competition is really the best thing since sliced bread.
And with patents, you’re merely asking for trouble. For example, the shrinkage of the Italian pharmaceutical industry after the introduction of pharmaceutical patents.
Re: Re: Patents aren't the problem
I think that allowing an inventor to reap some reward from his invention for a limited time is better than allowing anyone who simply has more money or a better market position to use the fruits of the inventor’s labor without compensation.
Otherwise, if I invent something, why should I share it with anyone?
It gives inventors a REASON to share their inventions, rather than keeping them hidden.
Re: Re: Re: Patents aren't the problem
I think that allowing an inventor to reap some reward from his invention for a limited time is better than allowing anyone who simply has more money or a better market position to use the fruits of the inventor’s labor without compensation.
That, indeed, is the common wisdom behind patents — but in practice that’s not what actually happens. Smaller companies beat up on bigger companies all the time, because they have a *better* understanding of the product and are more flexible and nimble, whereas the larger player is slow and hindered by legacy issues.
Yes, sometimes the bigger company wins, but quite often the smaller player outruns the larger player.
And that’s not because of patents, but because of the nature of competition.
Ho Ho Ho Merry Law Suit
And for you little Johnny, because you have been soooo good all year, here is a great big handout paid for by the little people who can not afford to heat their homes.
Ho Ho Ho
AD, put down the bottle – it only makes things worse.
Sober up and then come back.
Thanks