Unconditionally Bad Patent Results

from the the-troll-scenario dept

While plenty of folks who dislike the patent system are fans of the term "patent trolls," I tend to avoid it unless it absolutely fits. Since, by it's very nature, it's derogatory, it tends to shut off conversation rather than encourage it. However, there's an interesting post over at Patently-O (which normally tends to be pretty pro-patent) from a law professor trying to define what are "troll patents" (rather than patent trolls). He makes a pretty sensible argument: if you have a scenario in which the patent clearly contributes nothing to society, it should be considered a problem patent. That is, it's a scenario where the "invention" in question would have happened at the same pace even in the absence of the patent in question. Here are his conditions to make that determination:
  1. Is owned by someone that does not practice the invention.
  2. Is infringed by, and asserted against, non-copiers exclusively or almost exclusively. By copying I mean any kind of derivation, not just slavish replication.
  3. Has no licensees practicing the particular patented invention except for defendants in (2) who took licenses as settlement.
  4. Is asserted against a large industry that is, based on (2), composed of non-copiers.
If those four conditions are met, then it means that the product on the market would have occurred either way, and the only thing the patent serves to do is transfer money from the company making the product to whoever holds the patent. Considering the very purpose of the patent system is to "promote the progress," it's quite clear that the conditions above mean that no progress has been promoted -- and, in fact, the opposite has occurred.

Of course, if we actually had an independent invention defense against patent infringement, this whole debate wouldn't matter nearly as much.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    ChurchHatesTucker (profile), Mar 11th, 2009 @ 5:55pm

    Jeebus

    Well, yeah, if it fails THAT test, then it's no doubt a troll. I think you could even get the trolls onboard with that.

    I'm in no way ready to concede that others are not, however.

     

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  2.  
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    Weird Harold, Mar 11th, 2009 @ 6:41pm

    Almost all patent trolls have a licensing system, their intention is to get as many people paying a license as possible (and hopefully to back pay for however long they have infringed).

    #1 is an issue, because many inventors don't actually market or sell their inventions, at least not in the short run. You would need a "in the 10 previous years" or something in there to stop people from snapping at undeveloped patents too quickly (using the patent system against itself)

    #2 might be an issue if an entire industry appears out of nowhere to violate a patent. Example, a patent on a type of video encoding (a valid patent). If someone produces a freeware tube site program that uses that type of encoding and widely distributes it in "net time", there could be widespread commercial violation of that patent in a very short amount of time. Sheer volume of infringement should not be a trigger. Again, people could use this sort of thing against any patent to override it very quickly.

    #3 Almost all patent trolling companies have a licensing system, it is what creates their "value" for a lawsuit. They would just need to have a couple of friendly companies license the patent, and the rest is history.

    #4 See my #2 comments. It doesn't matter how many people are going to violate or want to violate a patent, there is no legal concept of "mob rules".

    What you might want to suggest is something like "infringement only can occur from the date of ownership", so a troll company buying a patent today cannot sue for what people have done in the past, only their going forward infringements. Patents could also be made non-transferable by sale, except for "sale for use" in making a product with the patent in it.

     

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  3.  
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    Anonymous Coward, Mar 11th, 2009 @ 8:56pm

    Wrong Focus

    Why attempt to identify what is a bad patent, which assumes all others are then good. Wouldn't it be a lot more efficient to focus on what is a good patent and toss out all the rest.
    Could it be the patent office budget is based upon patent submission fees and therefore they do not want to adversely affect their income? Is this a conflict of interest?

     

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  4.  
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    Easily Amused, Mar 12th, 2009 @ 7:14am

    Re: harold

    Once again, your utter lack of reading comprehension amazes.

    These are not stand-alone conditions, for a patent to fit this definition it would have to satisfy all four. So, your comments on #1 can be tossed away out of hand.

    The example you offer for #2 is clearly a situation of direct copying, and hence does not satisfy the condition (not even touching on the argument about whether software standards are patentable). If a very large number of non-copiers come up with the same invention in such a short period of time, then I would say the idea was too obvious to be patentable in the first place.

    #3 is kind of interesting, in a twisted way. You are suggesting that a trolling company will somehow get another to pay for a bad license on a dubious patent and actually make a product based in it? Just so the troll can sue other companies and make money? My cynical side says never to discount the power of idiots in high places, but I would hardly say this could happen frequently enough to invalidate the condition. If it did happen, it would likely be a result of collusion between the companies specifically to avoid this set of rules, and then share the lawsuit profits.

    Again, with #4 you missed the point... 'mob rule' has nothing to do with it. These conditions could be distorted unfairly in a very small or brand-new sector, or in areas where copying is rampant, like the fashion industry (if designs had patents).

     

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    Easily Amused, Mar 12th, 2009 @ 7:21am

    Re: Jeebus

    I think that it is a necessary starting point. If we can get those that fit this definition tossed out, it will bring a lot more attention to the issue of reform, and get more people thinking about the flaws in the current system.
    Using the narrowest definition allows for very little spin-doctoring and legal maneuvering out of it.

     

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  6.  
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    moelarry, Mar 12th, 2009 @ 8:08am

    truth about trolls

    for the truth about trolls please see http://truereform.piausa.org

     

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  7.  
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    Anonymous Coward, Mar 12th, 2009 @ 9:00am

    If you take the time to read the comments at Patently-O, discounting those that embody little more than visceral comments, you will quickly note that many, if not most, take Mr. Chiang to task by challenging his assumptions.

    If you take the additional time to read the few articles he has published during his short tenure in academia (see: e.g., his article available at SSRN concerning inter parties reexamination, you will come to realize that Mr. Chiang has no substantive experience in the area of patent law. For example, he views inte parties reexamination as a viable, cost effective, and relatively fast alternative to litigation. Of course, in his paper he appears unaware that not one inter parties reexamination filed since 2001 has as yet proceeded to a final decision by the USPTO. Somehow an 8 year latency period with no decision seems a bit at odds with "fast".

    Mr. Chiang has a lot to learn, and the comments by him that you cite make this only too clear.

     

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    Willton, Mar 12th, 2009 @ 2:04pm

    Re: truth about trolls

    Once again, the PIA has little credibility when it comes to patent reform.

     

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  9.  
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    Mike (profile), Mar 12th, 2009 @ 2:15pm

    Re:

    f you take the time to read the comments at Patently-O, discounting those that embody little more than visceral comments, you will quickly note that many, if not most, take Mr. Chiang to task by challenging his assumptions.


    I find it quite telling that you choose not to point out a single thing that disproves the premise: that patents that clearly have no social benefit are obviously a bad thing.

    Do you believe that is true?

    Or do you just want to tear down someone's reputation without actually showing that he was wrong?

     

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  10.  
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    Anonymous Coward, Mar 12th, 2009 @ 2:31pm

    Re: Re:

    Any comments I may choose to make concerning his post at Patently-O I will make at that site. My sole purpose here was to note for the benefit of those who do not frequent Patently-O (likely almost all those who comment here) that Mr. Chiang's view is not gaining much, if any, traction with those who are steeped in the law...including those who are not at all patent "right-wingers".

     

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  11.  
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    Willton, Mar 12th, 2009 @ 2:31pm

    Re:

    Agreed. The "independent invention" proposal has many flaws, none of which Mike has addressed.

     

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  12.  
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    another mike, Mar 12th, 2009 @ 2:56pm

    here's an idea

    When you create a new market with your innovation, and get subsequently sued for it as always seems to happen...concede defeat and hand over the list of orders the patent holder now has to fulfill.

    They have the patent on the invention and obviously have an interest in satisfying the market or they wouldn't bother defending the patent. It logically follows that they are willing and capable of taking care of the market.

    Just to show there's no ill will, offer to license your production facilities to the patent holder.

     

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  13.  
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    Mike (profile), Mar 12th, 2009 @ 3:07pm

    Re: Re:

    Agreed. The "independent invention" proposal has many flaws, none of which Mike has addressed.

    Odd. I've yet to see anyone raise a single actual flaw. I've posted on independent inventions many times, and I can't recall you ever listing out a single flaw. If there are some, please post them so I can try to address them, or to reconsider my position on independent invention.

     

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  14.  
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    Anonymous Coward, Mar 12th, 2009 @ 6:36pm

    Re: Re: Re:

    James Madison's "Detached Memorandum" might be a good place to start for understanding why "independent invention" is not embraced under US law.

     

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  15.  
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    Mike (profile), Mar 12th, 2009 @ 7:23pm

    Re: Re: Re: Re:

    James Madison's "Detached Memorandum" might be a good place to start for understanding why "independent invention" is not embraced under US law.

    I've read it many times and I fail to see anything in it that goes against the idea of an independent invention defense.

     

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  16.  
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    Anonymous Coward, Mar 12th, 2009 @ 8:18pm

    Re: Re: Re: Re: Re:

    Excerpt from the Detached Memorandum by Madison (date unknown):

    Monoplies tho' in certain cases useful ought to be granted with caution, and guarded with strictness agst abuse. The Constitution of the U. S. has limited them to two cases, the authors of Books, and of useful inventions, in both which they are considered as a compensation for a benefit actually gained to the community as a purchase of property which the owner might otherwise withold from public use. There can be no just objection to a temporary monopoly in these cases but it ought to be temporary, because under that limitation a sufficient recompence and encouragement may be given. The limitation is particularly proper in the case of inventions, because they grow so much out of preceding ones that there is the less merit in the authors and because for the same reason, the discovery might be expected in a short time from other hands.

    Let me preface my comment by noting that Madison was but one of many participants in drafting the US Constitution and our initial set of federal laws. Hence, his views, just as those of Thomas Jefferson, are personal to each and do not necessarily reflect the views of our other "Founding Fathers".

    The sole point in my reference to Madison's above work is his recognition that the conferral of a patent, so long as it was limited in duration, served in his view a useful social purpose...even in those circumstances where an invention "might be expected in a short time from other hands."

    An important facet of the original patent law, one that remains in full force today, was the concept of quid pro quo. As a condition precedent to the grant of a patent, an inventor was required to fully describe what the inventor had actually done. Once issued, the patent was formally published to disseminate its teachings to the public at large. While many debate the effectiveness of publication, the fact remains that the invention is placed in full view of those who may choose to avail themselves of what it teaches. As a matter of interest, I have noted over the years that the most avid readers of these publications are those in foreign countries. Perhaps they know something that seems lost on many of those who reside in the US.

    I well recognize that the patent system can be "gamed" by those who would take liberties with Section 112's requirements. However, it seems to me that approbation is more properly directed at those who engage in such actions, and not necessarily at the statutory language. In my view Section 112 represents the most important part of our patent laws and should be enforced with a vengance, so-to-speak.

     

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  17.  
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    Gene Cavanaugh, Mar 12th, 2009 @ 9:12pm

    Troll Patents

     

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  18.  
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    Gene Cavanaugh, Mar 12th, 2009 @ 9:18pm

    Troll Patents

    Excellent article, until we got to the last line.
    This "defense" has been used in trade secrets; and the result is that if one is accused of infringement, one simply comes up with documents that show the work is "independent". It has pretty much killed trade secrets (except for mammoth companies with huge campaign contributions; Coca Cola comes to mind).
    The patent system is in massive disrepair because of the potential for campaign funds from the abusers, and the brain-dead requirement that the service pay for itself with fees - but "knee-jerk" fixes would only make things worse. What we need is intelligent reform (in both the above areas).

     

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  19.  
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    Mike (profile), Mar 13th, 2009 @ 2:58am

    Re: Re: Re: Re: Re: Re:

    The sole point in my reference to Madison's above work is his recognition that the conferral of a patent, so long as it was limited in duration, served in his view a useful social purpose...even in those circumstances where an invention "might be expected in a short time from other hands."

    Um. That does not in any way describe how an independent invention defense is either flawed or not allowed.

    I'm still waiting to hear the "flaws."


    An important facet of the original patent law, one that remains in full force today, was the concept of quid pro quo.


    Indeed. But, again, that has nothing to do with an independent invention defense.

    You seem to be handwaving rather than addressing the actual question.

     

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  20.  
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    Anonymous Coward, Mar 13th, 2009 @ 6:49am

    Re: Re: Re: Re: Re: Re: Re:

    I'm still waiting to hear the "flaws."

    I believe you meant to direct this to another commenter since I have not made any reference to flaws.

     

    reply to this | link to this | view in thread ]


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