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March 22, 2005

D.C. Patent Troll Hoedown

Patent trolls and their detractors, often the same thing, convened en masse last week in our nation's capitol to lament their own existence. The original patent troll spotter, Peter Detkin, did a fancy lexicographical dance. Only one opinion was not heard: that the U.S. patent system is thriving. Thriving, except for/because of (you decide): patent trolls.

First, a history quiz question: who was the world's most prolific patent troll?

Peter Detkin coined the term patent troll while fighting patent assertions against Intel, for whom Peter was a self-righteous wage slave at the time. But now, being the managing director of a patent troll, Intellectual Ventures, which "invests in pure invention", Peter's pointing the finger elsewhere, to smellier trolls.

Detkin trilled that patent trolls are different from patent licensing companies, such as his now-beloved Intellectual Ventures, because patent trolls buy patents to: 1) game the system, 2) are quick to litigate, and 3) assert patents of highly questionable merit. Let's break that down.

Game the system - face it, patent litigation is a game, albeit a pricey one. Companies in litigation consistently and constantly "game the system" by doing anything they think they can get away with. That's human nature.

The big time of gaming the system is trying to rig the whole system to one's own advantage. Example: Intel. David Simon, Intel's chief patent counsel, has proposed that infringing manufacturers, like Intel, shouldn't have the patent laws exercised against them by being forced to stop selling their infringing products. Go gut that patent enforcement, big Dave; to hell with constitutional rights.

Quick to litigate - companies regularly ignore patent assertions. In fact, a company responding to a patent assertion would be newsworthy. So, what else can a patent holder do but file suit?!

Assert patents of "highly questionable merit" - Who's to say? Last time I checked, the patent office and the Court decided validity. Eolas (v. Microsoft) went quite a ways on a peg leg. Rambus, after being on the standards committee for technology for which they held patents on the sneak, went all the way against Infineon. Last year, Microsoft lost a patent case against SPX and dished out $60 million in settlement for a patent that I personally found a half-dozen anticipating references for, evidence which the defense trial attorneys somehow couldn't get across.

Want to abort patent troll fetuses?  - allow the patent office enough funding, at least what they take in fees, by warding off kleptomaniac politicians. Tinkering proposals by Detkin and others to "create a more viable system for opposing patents after granting" are not thought through. Why not just let the patent office have enough money to do its job?

So, the patent system is thriving, the patent trolls are singing, and I'm singing along, because a good chunk of my business is prior art search, often to invalidate patents. No system is perfect; after all, we're filthy earth monkeys with abstract thinking capacities, but the moral fiber of rattlesnakes.

Answer to the history quiz question: The world's most prolific patent troll was Thomas Edison, who never made products, but snagged 1,093 patents, and whose cantankerousness befits his title of "King of the Patent Trolls". For example, at a time when America's electrical system was in the process of being decided, Edison invented the electric chair to discredit alternating current as dangerous. AC electricity was being promoted by rival George Westinghouse, while Edison was pushing DC. Westinghouse won that battle, and thanks to that, America's prisons have had the ready facility to fry prisoners in Edison's hot seat.

Posted by Patent Hawk at March 22, 2005 12:02 AM | The Patent System

Comments

"ssert patents of "highly questionable merit" - Who's to say?"

It's pretty obvious when a non-practicing entity asserts a patent of "highly questionable merit." Both the defendant and plaintiff know what is going on in this case. The plaintiff stretches the claims way beyond their elastic limit to make some argument of infringement, knowing (presumably) that they could never win at trial, simply to extort a "nuisance" settlement value of between, say $50K and $1 million, depending on potential nuisance the NPE can cause the defendant. You cannot lump all NPE's together and say they are "good" or "bad" -- some behave well and others do not. Also, I don't think this is a problem with patent laws -- it is a problem with the courts. The same extortive behavior occurs in other civil trials, such as in SLAPP suits. A simple way to fix this would be to allow the court to, by discretion, and sua sponte order that costs as well as compensatory and punitive damages be paid to the defendant in cases where the case is frivolous.

Posted by: Defector at February 28, 2010 3:43 PM

Hawk, we already cleared up in a previous post that Edison did in fact make many of his own inventions and sell them. Stop your lying about that. You need to read your history boy.

Posted by: 6000 at March 1, 2010 9:34 AM