Have The Courts Done Enough To Stop Patent Trolling?

from the not-yet dept

As we've noted recently, a series of Supreme Court decisions over the past decade, culminating in the big Alice v. CLS Bank ruling in July, has clearly put a serious crimp on the patent trolling business. Vague, broad, dangerous patents are falling like flies, new patent trolling lawsuits are on the decline and the US Patent Office is rejecting a lot more questionable software and business method patent applications. All good news. But is it enough?

There are some who are claiming that the courts have effectively "solved" the problem -- so no new legislation is needed. Of course, it seems interesting to me that these same individuals often appear to be those who insisted there never was a problem in the first place -- and who are also arguing that the courts have gone too far. Economist James Bessen -- who has done tremendous work in detailing the problems of patent trolls -- has an article in the Atlantic where he notes that, for all the positive advancements thanks to the Supreme Court, there's still much more to be done, as plenty of patent trolling lives on:

But don't shed too many tears for the patent trolls just yet. While these changes are a real positive step, they are also limited. While it's true that the Patent Office is granting several hundred fewer business method patents each month, it is still granting record numbers of software patents overall. Most of the litigation is over software patents, not business method patents: One study estimates that business method patents constitute only 10 percent of the patents used in lawsuits by “non-practicing entities” including patent trolls. And while the number of lawsuits has decreased, there are still over four times as many as in 1990, before the surge in software patenting began following court decisions in the mid-1990s. Furthermore, Matt Levy of the Computer and Communications Industry Association told me that in only one case has a victorious defendant recovered legal costs—thanks specifically to the April Supreme Court decisions.

It’s possible that the Supreme Court decisions will eventually have a greater impact on patent trolls than they have so far. For example, the Alice decision pertains to abstract software patents generally, not just to business method patents. It all depends on how the lower courts, particularly the Court of Appeals for the Federal Circuit, interpret and apply these decisions. But that is the very court which has allowed so many broad and vague software patents starting from the 1990s.

Indeed, the efforts by the Supreme Court have been helpful in moving things in the right direction, but so far it's only been a slight course shift, rather than really fixing the underlying problems of the patent system. Trolls are still able to get away with shaking down companies over questionable patents, because it's still ridiculously expensive to fight back -- even if there's a marginally better chance of recovering fees in truly egregious cases. Too many questionable patents are still getting through, and even if courts may finally be more willing to reject questionable "on a computer" patents, it's still a risky and expensive proposition to go to court.

Patent trolling is still a serious problem that many actual innovators face. The Supreme Court may have opened the door to fixing some of the very worst problems, but that doesn't mean all of the problems have gone away. In fact, nearly all of the problems are still there in some form.

Reader Comments

Subscribe: RSS

View by: Time | Thread


  • icon
    Get off my cyber-lawn! (profile), 17 Dec 2014 @ 12:24pm

    Doing better but not fully healed

    Any system in which the only solution is that a problem be pushed up the chain through every single level of supervision/decision is seriously broken.

    Problems are to be fixed/corrected at the lowest level possible so if the lower courts keep passing crap patents up the judicial chain of command then the problem isn't fixed.

    The Supreme Court has better things to do with it's time than fix the screwed decisions of the lower courts on issues which SHOULD BE RELATIVELY STRAIGHTFORWARD RULINGS!

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

  • identicon
    Brian, 17 Dec 2014 @ 12:32pm

    And what about the small guy vs Google

    Mike,

    I am not sure if you are being the mouthpiece for Google PR anti-patent agenda or you are just not fully informed.

    An Inventor should not be happy with what Google $10 Million+ lobbying and PR effort is doing to our 200 year old patent system.

    Google is playing a Head Fake with patent troll issue and we will then end up dismantle the patent holder rights.

    If you are a real journalist you would advocate asking these question to Congress or Michelle Lee at her next hearing.

    Question 1 :

    Michelle Lee : Do you espouse to patent philosophy of Sergey Brin at the shortcomings of U.S. patent law quote “patent protections, which can last nearly two decades, should be shortened in many cases”

    https://www.youtube.com/watch?v=nK2nwo22c0Y

    From time : 45:45 -> 50:00

    Question 2:

    Michelle Lee : Do you believe in Incentive ..

    If two people came up with the same idea just 2 weeks apart as Sergey said in the video (World A and World B)

    What if there was no incentive for many years of patent protection. Would Person A and Person B work hard to solve a particular problem ?

    The question should be what if there is no protection / incentive ? would anyone work hard at solving a problem when some 3rd person C can just copy it without putting in years of and hard work R&D effort ? For example Indian pharmaceutical company of Chinese smartphone company or a Russian software company ..

    Question 3:

    Michelle Lee : Do you think if Google page-ranking patent was only given 5-7 years of patent protection (that Sergey alluded to in the Video) that would be make Google 250 Billion dollar company ?

    BTW : That protection would have lasted only till 2004.

    Question 4 : How many small businesses in US are based on Patent Protection ? What effect the weakening of patent protection and patent system would have on those ?

    Question 5: Would gutting the incentive based patent system be a good price to pay to protect Google from thew mythical patent troll ?

    Question 6: Why do you think there are so many Obama administration officials from Google ?

    Question 7: Will you be pursuing Google anti patent agenda at the USPTO ?

    Question 8: If anybody who sues Google becomes a patent troll at USPTO with every claim invalidated by PTAB ?

    Question 9: Will Google cases be given any preference at PTAB ?

    Question 10: Do you still owns Google Stock / Options and if there is any backdoor deal with Google

    Question 11: Now that Cisco has sued Arista Networks for patent infringement and selling the same switches for 1/3 the price by blatantly copying Cisco invented technology and in a lot of cases hiring the very engineers that built in at Cisco. What do you think the lesson is for weakening the patent holder rights ?

    Question 12: Do you think some Indian or Chinese company can do Cisco/Arista to Google in next 5 years ? By hiring talent from Google to build the same search engine ? and then the foreign company drag every patent thrown at them by Google for infringement in PTAB — with BRI , plus multiple bites at the same patent with joinder loophole ?

    Question 13: How will you protect individual and small business patent holder ? Or should patents be only granted and enforced by Big corporations and everyone else be labeled as patent troll ?

    -Brian

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

    • identicon
      Anonymous Coward, 17 Dec 2014 @ 4:51pm

      Re:

      Wow, shit, when Ronald J. Riley can't even afford to hire shills that have proper grammatical skills, you know he's losing money.

      ...Eh, still don't give a shit.

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

    • identicon
      Anonymous Coward, 17 Dec 2014 @ 6:28pm

      Re: And what about the small guy vs Google

      Show me on the doll where Google hurt you.

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

    • identicon
      Editor-In-Chief, 17 Dec 2014 @ 8:27pm

      Brian and His Thirteen Questions

      To Brian,

      Do you really want answers to your questions? If not, TL;DR. If so, here we go:-

      A1. In today's fast changing and highly dynamic technological environment, patents that last for anything more than 2 to 3 years are simply a burden that cannot be sustained. In many cases, the patents that are submitted to the various Patent Offices around the world are taking longer to process than the viability of the specific patents themselves. The solutions that these patents are deigned to solve end up coming from many different locations independently of the original patent requester.

      A2. There are many, many people who have a requirement for a solution for the same problem and come up with similar solutions. The reward for them is solving their problem and getting on with their various businesses and life. It does not require a patent system to reward them for their idea and implementation. In relation to this, if a solution is thought of by two or more independent people then the idea or solution is not non-obvious and hence not deserving of a patent.

      Trying to just copy an idea has been shown to not be the best method for success. When implementing and idea there is much knowledge that goes into the why of the implementation. Many times this knowledge is not made available even when the implementation is available for copying. I have worked for a number of companies where this mattered. The problem for the companies in question is that even though they had the design manuals for their own products, the reasoning why was not documented. Early in my career, I had a project for one company that looked at why their products only covered specific ranges of properties. It turned out that the original design manuals were written so that they could have a relatively linear design criteria. The gaps turned out to have highly non-linear design criteria. this knowledge had never been written down (as far as I know).

      Companies that do keep this knowledge in-house will usually have a distinct advantage over competitors who have just copied their products.

      A3. If you cannot achieve business success from your idea or solution without a long term monopoly, then it becomes obvious that you shouldn't be (and cannot) running any business for profit. I have seen enough ideas developed wherein the money is made in the first few years. The inventors do not stand on their laurels but keep innovating to ensure that they have a reputation for being the best in the field and being ahead of the crowd. Many of them consider the time and effort in getting a patent as being wasted in relation to making their businesses succeed.

      A4. Since it actually costs a significant amount of money to obtain a new patent, I know a number of people who consider that wasted money. If you can set yourself up as a troll, then there can be a significant pay-off. But as we have seen often, it tends to be shonky lawyers who set up such businesses.

      A5. The patent system as it currently exists is totally useless to one such as myself for getting ideas and products developed. I find that what is non-obvious to one person is generally obvious to many others. I find that it is the person who thinks his/her idea is non-obvious and applies for a patent is usually the one who doesn't have enough knowledge to realise that the idea is obvious to lost of others.

      A6. Who cares?

      A7. Why should he, it is not his business?

      A8. Your question is completely unclear and nonsensical.

      A9. Again who cares?

      A10. Meaningless question - it is more appropriate to ask your local state and federal representatives these questions where it actually makes sense to ask such a question. In any case, you need to answer in full detail all such holding you have first.

      A11. Problems with your question - Cisco is only the patent holder not the inventor. Secondly, if a company cannot maintain an environment that holds onto their staff (by being better than their competitors), then that's a business problem not a problem with patents. Personally, I think that a patent should only be given to a real person and that they cannot dispose of said patent except to relinquish it. This would certainly stop the a lot of the guff that currently goes on.

      A12. Since Google is continually developing their products, even if another company were to hire Google's existing staff to build the same engine, by the time it was implemented, Google should have gone well past where they were at. If it didn't then Google would deserve to have the competition eat it pants.

      A13. As far as I am concerned, the number of patents issued in any year or decade should be very small. Maybe as low as a 1000 per year or say 5000 per decade. Most patents that I have seen are not worth a thing in terms of advancing science and technology and are completely obvious to someone skilled in the arts for their particular field.

      It has simply become another revenue source for the government bureaucracy and does not fundamentally advance anything that matters.

      If I had a dollar for the number of times I have had people say to me that I should patent my ideas, I would be a rich man. However, most if not all my ideas are based in what has gone on before me or are obvious solutions to the problems that arise. I find it far better to share my ideas and everyone gain than to try and gain at their expense. It would be immoral to use a system that is an actual abuse of society to gain an advantage because I could get a monopoly on something.

      If you are worth your salt, you will succeed. If all you have is ideas and cannot implement them because you do not have enough nous to get a good team around you then that's your problem not mine or anyone else's.

      Last point, I know of a successful businessman who has had his product (software source) stolen (he runs a software house) by others who set themselves up in competition. He is still around, they are not. They failed because they couldn't innovate. He has succeeded because he kept innovating. There are others who have been in the same boat and have still succeeded because they could innovate, whereas the competition did not and failed.

      David Oliver Graeme Samuel Offenbach

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

      • identicon
        Brian, 19 Dec 2014 @ 12:54pm

        Re: Brian and His Thirteen Questions

        Dear David Oliver Graeme Samuel Offenbach,

        Please take a look at the video and you will see what happens to US and Jobs in US if you let big companies / china just rip off our patented technology.

        Getting rid of patents .. will do what ?

        https://www.youtube.com/watch?v=Tu4U_XAkkvM

        Please inform yourself on all sides of the issue

        -Brian

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

  • identicon
    I have heard the singing, 17 Dec 2014 @ 1:02pm

    Have they done enough

    NO Next question.

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

  • icon
    That One Guy (profile), 17 Dec 2014 @ 3:00pm

    Really easy to answer

    Does patent trolling still exist as a viable 'business model'?

    Given the answer is 'Yes', then no, not enough has been done to kill off the parasites. Until the answer to the above question changes to 'No', then the courts have not done enough to stop patent trolling.

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

    • Re: Really easy to answer

      Google PR and Head Fake and drones are more than happy to oblige

      Please read this on how "Google steals to make its free model work"

      http://blog.heartland.org/2014/10/stealing-from-competitors-is-how-google-works/

      patent litigation in the US is heavily weighted in favour of deep pocket corporations like Google

      I will give you a new term that google tech funded PR will not mention or talk about.

      "Patent OGRE" :

      A patent ogre is a large company that has a significant market position in a product or service category and protects its economic interest by suppressing, bullying and/or simply grinding into the ground the smaller innovative competitors that have patented technologies. Faced with a small innovator with patents that potentially read on its products or services, the patent ogre may refuse to communicate with the patent owner, may refuse to license the technology at market rates, might force the inventors into lengthy legal proceedings beyond their financial abilities, create publicity campaigns to label the inventors as trolls, and drag them through endless legal manoeuvres until they run out of money, patience or time, and go away. Then the patent ogre continues to derive economic benefit from the technology that someone else invented or perfected.

      Please inform yourself before falling into Google PR machine of ruining our 200 year old patent incentive based system.

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

      • icon
        That One Guy (profile), 17 Dec 2014 @ 5:25pm

        Re: Re: Really easy to answer

        Well, someone has an obsession with Google...

        Patent trolling exists, this is a fact.

        Companies who produce nothing but legal fees, yet shake down others who are trying to produce actual products also exist, this is another fact.

        The patent/legal system as it stands now is incredibly biased in favor of patent trolls, if for no other reason than because it's dirt cheap for them to file a threat, but incredibly expensive for their targets to fight back. This is yet another fact.

        I do not care if Google happens to fall under the category of 'patent troll' or 'patent ogre' or whatever you want to call it, patent trolling, and those parasite that use it to extort money from others, is a problem that needs to be crushed and destroyed.

        If Google is, as you suggest, one of those that would be affected by fixing the problem, I still do not care, because the problem is much more than just one company, so focusing so much on just one company is missing the forest for the trees.

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

      • identicon
        Anonymous Coward, 17 Dec 2014 @ 6:29pm

        Re: Re: Really easy to answer

        "And why would the State Attorney General, who has most investigated Google wrongdoing, theft and piracy, Mississippi Attorney General Jim Hood, conclude: “In my 10 years as attorney general, I have dealt with a lot of large corporate wrongdoers. I must say that yours is the first I have encountered to have no corporate conscience for the safety of its customers, the viability of its fellow corporations or the negative economic impact on the nation which has allowed your company to flourish” — in an official letter to Google CEO Larry Page last year?"

        Hahahahahahahaha.

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

      • identicon
        Anonymous Coward, 17 Dec 2014 @ 10:54pm

        Re: Re:

        Scratch that, he's an ungrammatical jackass who thinks that not knowing how identifying snowflakes work and pasting the fucking article URL will make his point.

        Seriously, Riley, where the hell do you hire these inbred morons from?

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

      • icon
        Frok (profile), 19 Dec 2014 @ 12:42am

        re: protects its economic interest

        Fiduciary duty is what?

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

    • icon
      Frok (profile), 19 Dec 2014 @ 12:44am

      give more power to thought police

      Like Caesar or Hitler they will have our best interests only at heart.

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

  • icon
    Frok (profile), 19 Dec 2014 @ 12:41am

    legislating morality always wins

    Embrace your inner moral anarchist

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


Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here
Get Techdirt’s Daily Email
Use markdown for basic formatting. HTML is no longer supported.
  Save me a cookie
Follow Techdirt
Techdirt Gear
Show Now: Copymouse
Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

Close

Email This

This feature is only available to registered users. Register or sign in to use it.