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.

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  1. identicon
    Brian, 17 Dec 2014 @ 12:32pm

    And what about the small guy vs Google


    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”


    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 ?


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