Patent Troll Myths(patentlyo.com)
patentlyo.com
Patent Troll Myths
http://www.patentlyo.com/patent/2011/09/guest-post-patent-troll-myths.html
[A]bout 26% of the patents [in the study] were inventor owned, and a comparison with the percentage of individual inventors represented in litigation generally shows that trolls serve an important role in enforcing individual inventor patents.
6 comments
While I hate patent trolls as much as the next small technology business owner, the trolls themselves aren't the problem.
Completely non-novel patents being awarded by the thousands is the real problem. If the "trolls" were really just enforcing interesting and valid patents on behalf of individual inventors, that's one thing. But they're instead finding the most broad patents they can and using them to extort money from companies who are successful, sometimes regardless of applicability of the patent to the companies in question.
The fact that software can be patented at all is questionable in my opinion -- anything sufficiently complicated to be worthy of a software patent would be copyrightable. Anything less complicated should be held to an extremely high standard of novelty before being allowed a patent -- and even then I would put the time limit on such a patent at 5 years or less.
Just having an "idea" that no one has happened to already patent yet and sitting on until someone else thinks of it and implements it doesn't "promote the Progress of Science and useful Arts", which is the underlying mission of all IP protections in the US at least.
The patent database is full of so much noise that no one is mining it for ideas and creating software based on it at this point; instead everyone is coming up with similar ideas, and pretty much BY DEFINITION those patents shouldn't be valid.
Completely non-novel patents being awarded by the thousands is the real problem. If the "trolls" were really just enforcing interesting and valid patents on behalf of individual inventors, that's one thing. But they're instead finding the most broad patents they can and using them to extort money from companies who are successful, sometimes regardless of applicability of the patent to the companies in question.
The fact that software can be patented at all is questionable in my opinion -- anything sufficiently complicated to be worthy of a software patent would be copyrightable. Anything less complicated should be held to an extremely high standard of novelty before being allowed a patent -- and even then I would put the time limit on such a patent at 5 years or less.
Just having an "idea" that no one has happened to already patent yet and sitting on until someone else thinks of it and implements it doesn't "promote the Progress of Science and useful Arts", which is the underlying mission of all IP protections in the US at least.
The patent database is full of so much noise that no one is mining it for ideas and creating software based on it at this point; instead everyone is coming up with similar ideas, and pretty much BY DEFINITION those patents shouldn't be valid.
Patent trolls personally are a significant part of the problem in the sense that for every dollar won in a troll lawsuit, some high fraction will go lobbying the state for more patent laws allowing them to sue for more dollars.
The "don't blame the player, blame the game" argument appears here regularly. I think it's valid in those places where the players don't make the rules. But in a variety of concentrated industries in the US, big players, rule-enforcer and rule-makes are so closely tied that it is crucial that we aim at all of them if we're going to address a given problem in a given industry.
The "don't blame the player, blame the game" argument appears here regularly. I think it's valid in those places where the players don't make the rules. But in a variety of concentrated industries in the US, big players, rule-enforcer and rule-makes are so closely tied that it is crucial that we aim at all of them if we're going to address a given problem in a given industry.
I must not have been clear. I DO blame the player, and think that the lawyers at (e.g.) LodSys don't have the slightest clue about ethics or morality among them (I also think things about them that are not printable in an HN comment). I just think the proper strategy is to defeat ALL of the players at once by changing the rules, both from a cost AND a risk perspective.
If you want to fight trolls mano-a-mano in lawsuits to either invalidate patents or at least knock them down in relation to a particular product or company, then more power to you, but I personally would find it terrifying to fight such a lawsuit myself if my company DEPENDS on the victory of the lawsuit.
I'd gladly (once my company is profitable, anyway) donate to the cause to help take a troll down, however. :)
If you want to fight trolls mano-a-mano in lawsuits to either invalidate patents or at least knock them down in relation to a particular product or company, then more power to you, but I personally would find it terrifying to fight such a lawsuit myself if my company DEPENDS on the victory of the lawsuit.
I'd gladly (once my company is profitable, anyway) donate to the cause to help take a troll down, however. :)
I don't think it is productive to blame "the players". In fact, it obscures the issue.
Look at it from the perspective of the patents (in a Dawkins sense). Patents want to make money. Patents grant exclusivity to something valuable. In a capitalist society they will naturally be acquired by whoever can make the most money. Maybe not initially but over time they will find the right (value maximizing) host. There is an inevitability to this. The value maximizing host seem to be so called patent trolls.
The role of government is to set the rules/bounds for capitalism. With patents you could argue that there is a problem with the rules. But I don't think you can blame the players once the rules are set. Capitalism is not about morality, but profit maximizing and resource allocation. The solution is simple. Change the rules of the game.
As a side note Paul Graham's patent pledge attacks the wrong side of the problem and will therefore not be effective. Instead create a pledge for companies that want to change the game and let them be vocal about it.
Look at it from the perspective of the patents (in a Dawkins sense). Patents want to make money. Patents grant exclusivity to something valuable. In a capitalist society they will naturally be acquired by whoever can make the most money. Maybe not initially but over time they will find the right (value maximizing) host. There is an inevitability to this. The value maximizing host seem to be so called patent trolls.
The role of government is to set the rules/bounds for capitalism. With patents you could argue that there is a problem with the rules. But I don't think you can blame the players once the rules are set. Capitalism is not about morality, but profit maximizing and resource allocation. The solution is simple. Change the rules of the game.
As a side note Paul Graham's patent pledge attacks the wrong side of the problem and will therefore not be effective. Instead create a pledge for companies that want to change the game and let them be vocal about it.
Seeing capitalism as amoral discounts the fact that capitalism a system used by humans. It's humans who are being amoral to attempt to enforce obviously bad patents. A rational and moral human shouldn't enforce (or consider there to be any value in) a patent that is obviously overly broad -- any more than a rational and moral human shouldn't attempt to steal someone's house because of an error made by the government in recording the deed.
I vehemently disagree that you can "blame" the patents. It's humans all the way down.
I agree with you on the STRATEGY -- the best way to fix the problems is to change the rules. But I will continue to call people amoral/unethical and lob lots of hate in their direction when their behavior justifies it, regardless of whether they are technically breaking the law. A parasite is a parasite.
I vehemently disagree that you can "blame" the patents. It's humans all the way down.
I agree with you on the STRATEGY -- the best way to fix the problems is to change the rules. But I will continue to call people amoral/unethical and lob lots of hate in their direction when their behavior justifies it, regardless of whether they are technically breaking the law. A parasite is a parasite.
The term patent troll was invented by someone working for IBM to describe firms they couldn't dominate purely by flexing their own absurd patents.
These trolls are waging asymmetric war. If they met IBM or Apple on their preferred battlefield (i.e. formed a company and made products, which is considered "the right thing to do") then they'd be wiped out instantly by superior firepower. So instead they fight the only way they can, forming terrorist cells or shell corporations that consist of two layers and a handful of patents (often with shadowy funding coming from larger players).
Note a further parallel. The term "asymmetric warfare" means to fight like a terrorist. What's the term for having a force so overwhelming that you get to order smaller companies/nations about? That situation seems just as asymmetric, and just as troublesome for the weaker companies/nations, yet it doesn't have a catchy term for us in the stronger countries to worry about.
Just to be clear, I don't think terrorism or patent trolling are noble pursuits or good for the planet, but I am saying that the conditions that lead to them can in basically all cases be laid at the feet of the big players and if you want to solve these problems, it's the big players you'd need to change.
These trolls are waging asymmetric war. If they met IBM or Apple on their preferred battlefield (i.e. formed a company and made products, which is considered "the right thing to do") then they'd be wiped out instantly by superior firepower. So instead they fight the only way they can, forming terrorist cells or shell corporations that consist of two layers and a handful of patents (often with shadowy funding coming from larger players).
Note a further parallel. The term "asymmetric warfare" means to fight like a terrorist. What's the term for having a force so overwhelming that you get to order smaller companies/nations about? That situation seems just as asymmetric, and just as troublesome for the weaker companies/nations, yet it doesn't have a catchy term for us in the stronger countries to worry about.
Just to be clear, I don't think terrorism or patent trolling are noble pursuits or good for the planet, but I am saying that the conditions that lead to them can in basically all cases be laid at the feet of the big players and if you want to solve these problems, it's the big players you'd need to change.
> The term patent troll was invented by someone working for IBM ...
The term is widely regarded as having been coined by Peter Detkin, then a senior in-house attorney for Intel [1] and now a managing partner for Intellectual Ventures [2].
[1] http://en.wikipedia.org/wiki/Patent_troll
[2] http://en.wikipedia.org/wiki/Peter_Detkin; see also http://www.intellectualventures.com/WhoWeAre/OurTeam/Bio/Pet...
The term is widely regarded as having been coined by Peter Detkin, then a senior in-house attorney for Intel [1] and now a managing partner for Intellectual Ventures [2].
[1] http://en.wikipedia.org/wiki/Patent_troll
[2] http://en.wikipedia.org/wiki/Peter_Detkin; see also http://www.intellectualventures.com/WhoWeAre/OurTeam/Bio/Pet...
I'm always suspicious when an article starts talking about "myths"
Another area of surprise was patent quality. While trolls almost never won their cases if they went to judgment (only three cases led to an infringement finding on the merits), the percentage of patents invalidated on the merits was lower than I expected. A total of 43 patents had validity adjudicated on the merits. Only 4 were found completely valid. Another 23 were held completely invalid, and the rest were partially valid.
I would assert that the number of patents found invalid is not a measure of "quality" in itself (if "quality" even exists in software patents). Lack of invalidation could just as much be a measure of the courts brokenness or defendants desire to settle or any number of things.
Just as much, the number of patents created by small operations is not a measure of their quality, validity or innovativeness.
One could look at the patents themselves and we've seen a number of egregious patents here. However, our "myth busting" patent-specializing law professor somehow does get around to that.
Another area of surprise was patent quality. While trolls almost never won their cases if they went to judgment (only three cases led to an infringement finding on the merits), the percentage of patents invalidated on the merits was lower than I expected. A total of 43 patents had validity adjudicated on the merits. Only 4 were found completely valid. Another 23 were held completely invalid, and the rest were partially valid.
I would assert that the number of patents found invalid is not a measure of "quality" in itself (if "quality" even exists in software patents). Lack of invalidation could just as much be a measure of the courts brokenness or defendants desire to settle or any number of things.
Just as much, the number of patents created by small operations is not a measure of their quality, validity or innovativeness.
One could look at the patents themselves and we've seen a number of egregious patents here. However, our "myth busting" patent-specializing law professor somehow does get around to that.
He addresses a number of your points, briefly in the article and more in-depth in his full paper, which is downloadable free of charge:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1792442
To summarize poorly, he admits that there might be some selection bias in which patents are defended but generally finds that Patent Trolls are just about as effective (or ineffective) in court cases as the general patent-owner population. You suggest (and I agree!) that the courts and current patent systems are ill-equipped to handle software patents effectively, but his systematic look at the evidence, compared to the excellent anecdotal look TAL provided, suggests that for the largest, most systematic trolls, the patents asserted aren't much worse than non-troll patents.
I highly suggest the full-paper, or at least the final conclusions section.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1792442
To summarize poorly, he admits that there might be some selection bias in which patents are defended but generally finds that Patent Trolls are just about as effective (or ineffective) in court cases as the general patent-owner population. You suggest (and I agree!) that the courts and current patent systems are ill-equipped to handle software patents effectively, but his systematic look at the evidence, compared to the excellent anecdotal look TAL provided, suggests that for the largest, most systematic trolls, the patents asserted aren't much worse than non-troll patents.
I highly suggest the full-paper, or at least the final conclusions section.
If he can't get his point across using 887 words, then what is the point in reading him further? Does he provide charts and graphs?
As I understand it, invalidating a patent is typically a Pyrrhic victory—you can't recover the money you spent on defense, even after demonstrating the plaintiff's willful abuse of USPTO's negligence. Which means you can't find a lawyer to defend you on contingency, so if your business can't sustain the full cost of the defense, you're just fucked.
Much of the news/hand wringing about trolls focuses on their targeting startups and smaller companies, so I found the following quote to be interesting.
"[A]bout 26% of the patents [in the study] were inventor owned, and a comparison with the percentage of individual inventors represented in litigation generally shows that trolls serve an important role in enforcing individual inventor patents."
"[A]bout 26% of the patents [in the study] were inventor owned, and a comparison with the percentage of individual inventors represented in litigation generally shows that trolls serve an important role in enforcing individual inventor patents."
His full paper is available here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1792442
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1792442
I think this patent law professor is an important voice, but once again my point is simple. Patents are NOT needed in the software industry to promote what is already a very fast moving environment. I prove this by showing something that is plain to everyone who is familiar with how tech companies work: they base their technology on incremental innovations, internal research, or open source. They do NOT read patent disclosures. We do not need to give out 20 year monopolies to incentivize patent disclosures by "inventors" to the public, because no one cares about these disclosures!!
The relevant numbers would be the proportion of companies that public patent disclosures have helped. For example, how many people were helped by Google publishing their PageRank algorithm (in its "best form")? Probably some were helped, but not a lot. And this is one of the BIGGEST and most HELPFUL examples of patents. How many were helped by amazon's 1-click patent disclosure? I am willing to bet maybe ZERO people were actually helped because by the time it was asserted, it was OBVIOUS to everyone who made the technology.
The relevant numbers would be the proportion of companies that public patent disclosures have helped. For example, how many people were helped by Google publishing their PageRank algorithm (in its "best form")? Probably some were helped, but not a lot. And this is one of the BIGGEST and most HELPFUL examples of patents. How many were helped by amazon's 1-click patent disclosure? I am willing to bet maybe ZERO people were actually helped because by the time it was asserted, it was OBVIOUS to everyone who made the technology.