Rather Than Pressuring The ITC Over Key Patent Cases, Congress Should Fix A Broken Patent System

from the stop-the-favoritism,-fix-the-problem dept

For years we've talked about how many patent holders these days have two cracks at anyone they accuse of infringing: through the courts and then separately through the ITC, which can issue an injunction (but not monetary awards) that block a product made elsewhere from entering the US. The ITC doesn't have to follow the same rules as the courts. So, for example, it doesn't need to abide by specific Supreme Court precedent, which can lead to some wacky outcomes. But, really, it's just one more example of a broken patent system.

It's interesting to see that in a high profile case that the ITC is handling, between Intel and X2Y Attentuators LLC -- which describes itself as "an intellectual property company" -- various members of Congress are so worried about the possibility of an injunction issued against Intel, that they've specifically sent a letter to the ITC urging it to "consider the broader public interest" before making a decision. Two letters were sent -- one from the two Senators and all five House reps from Oregon, and another from the two Senators and all eight House reps from Arizona -- telling the ITC that a ruling against Intel would have a "detrimental effect" on the workforce and such an injunction could "discourage" US production and "could do more harm than good with respect to the public interest."

While they're right, this does seem like blatant pandering to constituents. Intel has very large presences in both states (16,000 employees in Oregon and 11,000 in Arizona). However, as the National Law Journal article linked above notes, this is becoming pretty standard, any time a large tech company faces an injunction from the ITC. Its Congressional reps get together and send the ITC a letter. While I agree that these injunctions can do serious harm and the economy, and innovation is much better without the ITC issuing them, it's troubling to me that these elected officials are resorting to pressuring the ITC, rather than doing what they should: recognizing this is just one small symptom of a truly broken patent system. Instead of trying to pressure that one symptom, why not focus on actually fixing the problems of the patent system? If they want a starting point, we've got some ideas.

Reader Comments (rss)

(Flattened / Threaded)

  1. icon
    TtfnJohn (profile), Sep 18th, 2012 @ 9:52pm

    The reality is that it's easier and offends fewer vested interests than tackling the entire patent system. Keeping in mind that the courts are a significant part of the reason it's broken.

    That said if there's good reason to pressure the ITC over one (some) patents there's an even better reason to press for going over the entire broken system.

    Judge Posner had some valid points about actually cutting the number and type of "inventions" qualifying for patent protection down. You had some good responses.

    I'd also point to the term of patents these days. Cutting it in half to 10 years even in Pharma wouldn't hurt much and limiting renewals would hurt even less.

    As has been pointed out by both you and Judge Posner is that patent protection is possible in the tech sector even if it is largely prior art, well known and practised or considered obvious by practitioners. And there it hangs till it gets challenged and invalidated or worked around.

    And I'm just barely beginning. Like telling patent trolls that unless they're actually MAKING what the patent covers they're gonna lose it in short order and it'll go into the public domain.

    And more.

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

  2. identicon
    Anonymous Coward, Sep 18th, 2012 @ 9:58pm

    US Patent Cow or The Tech Tax

    The government gets paid for patents. Then they get paid a second time to review the same patents. A lot of the money from this is not used to improve the patent office but pulled into the general fund to pay other government expenses. So congress is in no hurry to kill this profit center. Its a tax that their constituents don't see, much less complain about.

    The burden for dealing with the fallout from this is not under either the congressional or executive branches of government. Its in the judicial. So no one gets held responsible for it.

    As for the CAFC, they are protecting their jobs. They don't want to narrowly define patents, they want it as broad as possible to keep the case load up so their jobs are justified.

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

  3. icon
    That One Guy (profile), Sep 18th, 2012 @ 10:13pm

    You know, given the increasing blatancy of the corruption of the government, I'm rather surprised they were so mild in their 'suggestions', instead of just coming out and saying 'Find in favor of Intel, or people will get laid off and we won't get re-elected. Should that happen, we will most certainly not be the only people losing our jobs.'

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

  4. icon
    ECA (profile), Sep 18th, 2012 @ 10:49pm

    LETS SEE..

    So, we are trying to make laws (trade agreements) against other countries and Copyrights(drugs being copied and used over seas) then we are getting PISSY, that another country is trying to sue one of our bigger industries??

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

  5. identicon
    Anonymous Coward, Sep 19th, 2012 @ 1:18am

    'why not focus on actually fixing the problems of the patent system'

    dont be stupid! that would mean having to actually use their brains instead of using their political weight to achieve an end result, and we all know how hard that would be!

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

  6. identicon
    Tom Anderson, Sep 19th, 2012 @ 2:25am

    The ITC should follow precedent of law. That's just broken...

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

  7. identicon
    Anonymous Coward, Sep 19th, 2012 @ 3:27am

    The political perspective on patents is:
    Protecting our industry good, protecting foreign industry bad

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

  8. identicon
    Ed C., Sep 19th, 2012 @ 6:53am

    Re: US Patent Cow or The Tech Tax

    Thank you! The more people get this, the better chance we have of getting real reform.

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

  9. identicon
    Ed C., Sep 19th, 2012 @ 6:57am

    Re: LETS SEE..

    It's kind of like the couple who rails against "guy rights", but then wants exemptions for their son.

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

  10. identicon
    Ed C., Sep 19th, 2012 @ 7:01am

    I doubt that the injunction will be granted, as Intel has a lot of clout, but I actually hope it does. Yes, this will hurt a lot of people, but a junky usually doesn't come clean until he hits bottom.

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

  11. identicon
    Pixelation, Sep 19th, 2012 @ 7:21am


    Perhaps it's time to start a list of companies that are patent trolls. Let's get our Congress critters to have a look see.

    #1. X2Y

    #2. Intellectual Ventures

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

  12. icon
    gorehound (profile), Sep 19th, 2012 @ 7:31am

    We have a Do-Nothing Congress who are receiving at the very least 100's of millions of dollars in Big Money.
    They will not fix the Broken Patent System.I am not optimistic on them actually making a Fair and Useful Patent System the actually supports US Innovative Technologies.
    I have an almost Zero Approval of our present Political System.
    Washington is a Cancer !

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

  13. identicon
    DCX2, Sep 19th, 2012 @ 9:25am

    More details on the patents?

    I would like to hear more details on the patents in question, rather than just accusations of X2Y being a patent troll. I say this because I have personally used X2Y capacitors in one of my designs. It's a very special type of capacitor that is designed from the ground up to have the smallest inductance possible, which is important for a bypass capacitor.

    I'm not sure if the patents in question deal with those capacitors, or if it is even the same company, but doing some googling suggests X2Y Attenuators deals with passive components like capacitors. Can we get some verification that they are actually a patent troll?

    I say this because X2Y capacitors are real. Here's a link to a presentation about X2Y capacitors and how they improve the power distribution network of a PCB with an FPGA.


    Here's a link to DigiKey, where you can buy X2Y caps right now.


    This capacitor is not one of your standard "on the internet" or "on a cell phone" type things. This is the kind of stuff that actually deserves patent protection, in my opinion.

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

  14. identicon
    Anonymous Coward, Sep 20th, 2012 @ 12:03am

    Re: More details on the patents?

    No, it does not. Bypass capacitors have been standard in electronics for many decades. Reducing stray inductance in a capacitor, has been a standard technique in capacitor manufacture, likewise for many decades. A lot of stuff in electronics has been around for a very long time. Just saying, "Ooh, electronics, high tech, must be new and patented!" will lead you into error nearly every time.

    Chances are, X2Y's patents are junk, just like lots of patents.

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

  15. identicon
    Willlton, Sep 20th, 2012 @ 7:43am

    Re: Re: More details on the patents?

    "Chances are, X2Y's patents are junk, just like lots of patents."

    Guessing does not qualify as analysis.

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

  16. identicon
    Harry, Oct 16th, 2012 @ 7:25pm

    Re: List

    If you do the research x2y is not a troll. They offered this technology 10years ago to intel.

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

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