Friday, 23 April 2010

Ever heard of the Patent Troll?

Hang around the wrong places long enough, and you’ll soon hear the residents decrying what they call “patent trolls,” i.e., serial rent-seekers who prey (they say) on poor business folk.

The truth, however, is that Patent Trolls are a myth, as this pertinent piece portrays.

Hat tip to Dale Holling at the State of Innovation blog, who warns about the unfortunate misuse of “the m-word.”


  1. Yeah right. A single sided video from the patent office is just the argument needed to convince me.

    The video only considers the nasty big cooperates as patent infringers.

    The video assumes only one inventor is ever able to come up with the same idea.

    Basically, with the same effort you could make a video making the exact opposite point.

    I invented a revolutionary medical bronchoscope simulator that has made it to the top 10 in the NZ Medical innovation challenge.

    There are several patents taken out on the invention but there are even more lob-sided solutions that we had to put in to circumvent existing paper patents.

    My client has spend as much on patent lawyers doing patent searches to make sure no patent infringements occur as he did on my technical team to create the actual product. With every road block he had to call on us and spend even more money to find ways around existing patents. Patent searches kept producing entire reams of paper patents that we had to go through.

    How can you not accept that paper patents are stopping innovation? You could argue that we simply should buy a license from the patent holder which has been tried in some cases but the fees are exorbitant making the whole thing economically unsound.

    As an example, the modest vibration motor found in every play station controller and mobile phone. don't think for a moment that you can apply such simple technology in your product without paying huge fees. Sony found that out the hard way. We can not afford those fees so we are forced to do without.

    I am not a patent lawyer. I am an inventor. The fruits of my creativity are mine and I reject the notion that they can be taken away simply because someone else happened to think the same thing.

    Explain to me why I am not entitled to benefit of the fruits of my labour?

    My Bronchoscope simulator is a classic example of innovation followed by hard work and determination to see it though to a product. In the end the idea is cheap. It is the execution that has value and that can not simply be copied.

    I think our project doesn't need patents. Many of the solutions are unique but only an extension of other peoples ideas and inventions. It is thanks to these ideas that are accessible that we can grow and push the boundary. If every concept could be patented we would be back in caves very soon.

    Finally, have a good look at patent documents. The video claims that a patent is a publication of the invention. This is bullshit. Patent documents are notorious for vague descriptions in the broadest sense. Patent lawyers are trained to write things up that way and the patent documents I had to approve for my project were loaded with generalities and try to obscure the real invention. Patent descriptions are designed that way to buy the right to sue without providing the detail required to avoid patent infringements.

    It is a stupid legal game with as sole purpose monetary gain for those that can't be bothered to get off their ass and do something creative themselves. I hit this wall every day and I guarantee you that my clients would be much better off without the patent system.

    I watched this video twice but it is no more than a promotion video for the patent office.

  2. Who, I wonder, is the audience for this very expensive video. I think anyone who know enough about the patent system to sit through the whole nine minutes will see though the inaccuracies (although I do agree with some of the points.

    I think it is unfair to portray patent infringers as criminals when, as the makers of this video well know, a patent can (and almost always is) infringed innocently.

    Also, to imply that the patent system is "unfair" because trolls cannot get lost profits does not make any sense -- if the plaintiff does not practice the patent, he does not make any profits on practicing it -- thus, he has no profits to lose. It's hard for anyone to prove lost profits anyway.

    I do agree that trolls should have the same right to sue for patent infringement as anyone else -- their remedies should be more limited than other plaintiffs, in my opinion simply because of the NPE status (I don't think they should be able to get permanent injunctions, for example, because their harm cannot, by definition be "irreparable" -- they should be limited to a continuing royalty)

  3. @PC: A commitment to a Randian view of the necessity of intellectual property shouldn't commit you to defending the stupid and broken system we currently have. Instead, try and come up with a version consistent with your view of morality and show that it avoids the problems that I've posted previously and Dinther's here posting.

  4. @Dinther: Explain to me why I am not entitled to benefit of the fruits of my labour?

    But you refuse to countenance that same right for others. Odd.

    @Eric Crampton: "A commitment to a Randian view of the necessity of intellectual property shouldn't commit you to defending the stupid and broken system we currently have. "

    As far as I can see, the law as it is written is generally fine. But the application of it at the Patent Office(s) is less so--many commentators, for example, have been pointing out tha tin recent years the various Patent Offices have been acting more as a rubber stamp than a checker of claims-- accpeting anything that comes through the door, however badly presented, and howerver badly claimed.

    I suspect this is the trouble that Dnther is having with prior claims.

    But the solution is not to throw out bathwater and baby, but to clean out the bath.

  5. @PC

    "But you refuse to countenance that same right for others. Odd."

    No, I don't. Others have the same right to use the fruits of their mind to their benefit. I have no intention to stop others to use their ideas. That is the entire point.

    I thought I was clear that ideas only become valuable when turned into actual products. I don't think it is the idea that needs protection.

    A persons mind should be free and you are arguing that pure ideas can be owned and excluded to others.

  6. Peter, you appear quite intrigued by the whole intellectual property concept at the moment. However, you have not yet provided a clear and logical argument for your own position, rather than quoting the vague and muddled thoughts of Rand on this topic, and now a blatant commercial for an institutionalized patent troll, explaining that patent trolls are not actually rent seekers, but the true guardians of innovation and business.

    I quite like Dinther's practical expose that clearly shows the problems and pitfalls of the current implementation of what in itself already is a stupid concept, the separation of "invention" from producing the actual commercial product.

  7. @Dinther, you said, "I have no intention to stop others to use their ideas."

    Perhaps not. But you seem reluctant, nonetheless, to recognise their own right to earn the fruits of their own intellectual labour.

    "A persons mind should be free and you are arguing that pure ideas can be owned and excluded to others."

    Well, no I'm not. (Sheesh, if I had an animal for every straw man that's been raised around this topic, I'd have a whole farm-load, with enough straw to feed them all.)

    What I'm arguing is this: that the embodiment of a unique idea be protected, if and only if the creator of that embodied idea wishes it so, and that proper checking determines that the idea and its embodiment are indeed unique.

  8. Peter, I'm not in this argument to win. It is a subject that is important to me and you could argue that I have everything to gain from patents. Yet I am against them and I think the core principle is anti freedom.

    You say that a person may own his idea provided the other person (They don;t know each other) will permit this by not applying for a patent. I don't get it.

    Say, you invent this amazing roof structure. It cuts roofing cost in half. Benefits all around. Your idea. You worked hard on it and your client loves the design.

    Then someone comes along to point out that your original idea really isn't that original (This is true for 90% or original ideas by the way).

    In fact your idea had been patented by someone else 5 years ago. Let's even argue that this patent is not a troll and actually used in Germany by a building company.

    What we have here is a situation where thanks to patents your own idea is rendered inaccessible. You either negotiate a license or give up on the fruits of your mind.

    In my younger years I "invented" a unique wall clock. I even proceeded to manufacture 1000 of them and in my naivety I thought it would make be rich. Well, I learned that to sell stuff you need sales channels, support structures and so on. I ended up failing miserably and had to give up. A good lesson learned. Yet several years ago I ran into that same clock in a novelty shop in Takapuna. Made and sold by one of the contacts I had at that time.

    They may or may not have taken that idea from me but even now I do not say that they have "stolen" it from me. I failed to make this thing work. Maybe they made sure of I would fail but it is irrelevant. It was I who failed and morally I see no problem with them taking the idea further. patent or not (No patent by the way).

  9. @Dinther: Let me just tell you what I'm finding frustrating: it's all the putting of words into my mouth by so many of the commenters on these pasty few threads.

    For example (and I'm just picking on you because you're convenient), you say that I say "that a person may own his idea provided the other person ... will permit this by not applying for a patent. I don't get it."

    And I don't get it either, since I don't say anything of the sort.

    Please note what I did say above, which I'll expand on slightly here:

    What I think you're having problems with is not patent law as such, but the present-day application of patent law.

    As far as I can see, the law as it is written (with the limited terms of the license of exclusivity, and the requirement to produce a workable, concrete embodiment of your invention and so forth) is generally fine.

    But the application of all that at the world's Patent Office(s) in recent years is not so fine.

    As many commentators on patent law have been pointing out in recent years, the world's Patent Offices have in the last few decades been acting more as a rubber stamp than a checker of claims-- accepting pretty much anything that comes through the door, however badly presented, and however badly claimed.

    This has led to a "patent inflation," in which the world has been flooded with too many worthless, unjustified and vaguely-defined patents, which do allow rent-seekers to take advantage of some genuine inventors and businenessmen.

    I suspect this is the main cause of the trouble that you described above.

    But that doesn't mean that patent law should be thrown out, since the general principle behind patent law is a good one--that an inventor of a new idea has property in the concrete embodiment of his idea, and is entitled to benefit from the new value created from it.

    That doesn't require you to take out a patent for every invention you make, but it does require that you respect the right of other legitimate claimants to the fruits of their own labour.

    Regarding the roof example you raise, I'd suggest that the use of a particular structural system is outside the realm of patent law (since it is more in the nature of a discovery rather than in invention), but let's say that I do come up independently with something someone already has a patent over because they'd invented something earlier, and mine just happens to replicate it in every important detail.

    Then the reality is that that's the reality. I either negotiate for the right to use their system, or I develop a new one.

    But that said, as Gene Kappos of IP Watchdog points out, the frequency with which that sort of case happens is very infrequent--just 55 cases in the US last year out of all the patent applications made, "meaning it happens in .01% of applications. On top of that, out of the 55 declared only 2 involved small entities. On top of that, in these 2 situations involving small entities who claimed they were the first to invent although the second to file, neither prevailed. So small entities were 0-fer in FY 2009."

    So despite all the noise about it, this happens remarkably infrequently.

  10. What I'm arguing is this: that the embodiment of a unique idea be protected, if and only if the creator of that embodied idea wishes it so, and that proper checking determines that the idea and its embodiment are indeed unique.

    But the "embodiment" is a (necessarily unique) piece of physical property -- such as the paper and ink and glue that make up a (particular) book. And that property is already protected. What you're trying to argue for (and failing because it's ridiculous) is not that your particular paper and ink and glue should be protected as your property, but that every sheet of paper, drop and ink and dollop of glue in the universe should be considered "your property" if the ink forms a certain pattern. Which is to say the idea itself, not the embodiment of that idea.

  11. @Bez, What i really find intriguing is that most of my replies here in the various comments threads are not so much defending Rand's views of laws on patents and copyrights, trademarks and brandnames (which are far from muddled, as you'd find if you read them before criticising) as striking down all the various straw men about existing laws on patents and copyrights, trademarks and brandnames, about which so many commentators are in complete ignorance.

    Such complete ignorance that they attribute to me bizarre claims made up out of their own ignorance of the subject.

    People utterly ignorant, for example, that existing patent and copyright law has term limits, and why they have them (to combat the very parasitism that patent and copyright law was set up to defend against).

    Or ignorant about the historical application of patent and copyright law.

    Or insistent about some bogus facts of 'first-to-file.'

    Or confused about what exactly is protected in patent law (what's protected is not an idea as such, but the concrete embodiment of an idea).

    Or abjectly ignorant about the difference between a discovery and an invention, and that patent law only protects the latter.

    Or who seem to think that an inventor is obliged to patent whatever of his inventions he wants to put to commercial use.

    Or who fail to realise that an investor won't take on an inventor unless he has some concrete property right to make use of.

    Or, like this bozo, utterly ignorant of the already-existing concept of 'fair use,' (which protects use of material for satire, parody, , news reporting, comment, criticism, teaching, etc.) upon which abject ignorance he's erected a whole superstructure of flatulent nonsense about how, if I had my way, no-one could ever play a guitar again without paying money to the first cave-man to bang two sticks together.

    So that's what I find intriguing, not to say frustrating--that so many commenters have leapt in on the recent IP threads without any knowledge at all of the subject.

    So instead of arguing for a principle, I've instead ended up having to debunk so much bloody stupid gossip.

    What's wrong with knowing what you're talking about before opening your mouth? Is the concept so unfashionable, these days?

  12. @Greg: You lack even the intelligence to know the difference between a patent (which is what we are talking about) and copyright, which is what your example is talking about.

    And you apparently lack the discrimination to understand that my copyright does not give me property in all the paper, glue and ink in existence, and yet to come into existence.

    However, your materialistic misconception about intellectual property is frankly lacking in any understanding of where value comes from--which is what is at the heart of this discussion.

    Let me explain with an example. If you simply have a pile of nuts and bolts and metal and rubber and so forth, then all you have is a valueless pile of junk.

    But if I tell you how to put them together to make a rocket to the moon, then that input (with your labour) is responsible for raising the value of your pile of junk from worthless to something much more.

    Or, say, you sell me the junk from that original pile, and I put them together to make a new engine that runs on banana skins, then by that intellectual contribution I've brought a new thing into existence, I've created a whole new value that didn't exist before, and by that intellectual contribution I not only have property in what was formerly just junk (which I have by virtue of buying the junk off you) I've also got property in something much more valuable.

    And that intellectual contribution is what's protected in patent law, i.e., the intellectual component that allows you to raise the value of your own pile of junk by virtue of putting it together in a new and more valuable way.

    That's what's protected.

  13. I don't want to look to ignorant here, but what "Rand" is everybody referring to? Ayn Rand? Rand Paul? Reasonable And Non-Discriminatory licensing?

  14. @PC: Would also more than favour tightening things up at the patent office in the first instance. The way laws, at least in the US, currently are structured, folks can't make use of fair use provisions as well as they ought to because the costs of litigation are too high.

    It would be awfully nice if a minimal reform would apply punitive costs on specious take down claims. All of the Hitler Downfall parody videos clearly fall under fair use, even if the rights holder wished that fair use didn't apply.


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