Tuesday, March 19, 2013

Death to those who say ‘death to patent trolls’ [updated]

David Farrar says “Death to Patent trolls.” David Farrar is an idiot.

Thomas Edison was a “patent troll.”

So was Nikola Tesla.

So was almost every great inventor in the last 200 years*.

So is any inventor who licenses their invention rather than produce it themselves.  Unlike the ignoramuses who attack them, these people aren’t trolls. They’re benefactors:

Adam Smith wrote that the division of labour is a critical way of increasing a nation’s wealth.  Only if inventors can be paid for inventing, can they specialize in their profession.  The only way inventors can be paid just for their inventing is if people respect their property rights.  Note that Edison almost never practiced his inventions.  He licensed almost all of his inventions and sued if people would not pay.  Edison was not paid even a small percentage of the value he created in this world.

Ignoramuses argue that the people suing businesses these days aren’t inventors, they are (quotes Farrar) “tech-world parasites that buy up troves of intellectual property, not so that they can make a product, but so that they can turn around and sue successful companies for patent infringement with the aim of nabbing a quick and profitable settlement.”

Well, no they’re not.  They’re folk who in buying the rights to inventors’ intellectual property allow them the wherewithal to practice their craft, and help improve our lives.

Patent trolls, suggests Farrar, have “infested the courts over the last decade.”

Well, no they haven’t

Judge Michel,  former head of the CAFC, the US court that hears all patent appeals, points out that the number of patent suits filed each year has remained constant at less than three thousand.  Only about 100 of these suits ever go to trial.  In a technology based economy with over 300 million people and 1 million active patents this is trivial.

Farrar’s cut-and-past hit job “argues” these “trolls” target small start ups. Well, no they don’t.

The reality is that so-called “Trolls” sue large entities much more often than small businesses.

In short, the ignorance about patents and the attacks on them are based on little more than envy, bullshit, ignorance and emotion. 

Patents are property rights, and inventors are entitled both to protect their property, and to licence or sell their rights in it to whomever they choose.

As patent attorney Dale Halling argues, “The reality is the [manufactured] patent troll/ litigation crises is a very clever marketing ploy by large multinational companies that want to be able to steal inventors’ technology.

* * * *

* ‘“An astonishing two thirds of all America’s great inventors in the nineteenth century were actually NPEs” (Non-Practicing Entities).  But today’s modern Luddites would call these great inventors trolls.’
Quote from the excellent book Great Again by Henry R. Nothhaft with David Kline. Comment by Dale Halling.

UPDATE: David Farrar responds to this post, arguing “not every person who patents something they don’t produce is a patent troll.” [Emphasis mine.]

But patent trolls [says Farrar] don’t actually come up with inventive ideas. Their inventive idea is to just file a patent over anything they can think of, even if it is not a true invention. Once they get the patent, they’ll find victims who will pay them a fee rather than go to court to get the patent over-turned.

Now this is odd for several reasons. It’s odd because the answer to Farrar, whose copy-and-paste posts normally contain most of the post from which he copies, is in the paragraphs of the post he didn’t copy: that what he calls “patent trolls” are folk who provide the wherewithal for inventors to invent without needing to manufacture, market and sell the results of their inventions themselves—for “only if inventors can be paid for inventing, can they specialize in their profession… [and] in buying the rights to inventors’ intellectual property [these folk] allow them the wherewithal to practice their craft, and help improve our lives.”

Furthermore, if what is “dreamed up” is just “anything they can think of,” if it is not “a true invention,” then why has it been granted a patent,* and more importantly why is it the parasite’s wish to use it? If it is not in any way a “true invention,” then why do they find it so damned useful they wish to steal the idea?

It’s also odd because he earlier claimed the patent trolls weren’t themselves inventors. Now he claims they are, just not inventive inventors.

Even more odd, Farrar then goes on to object to Judge Michel’s fairly telling point, above, that “patent trolls” have not “infested the courts over the last decade”—as Farrar claimed in his earlier post that they had. But Farrar’s answer is to argue that we don’t see these cases because “they don’t go to trial.” In which case, it’s impossible to see how they can be infesting the courts.

So a lot of oddness in one short post.

There is certainly an infestation about however, an infestation about which to be on guard: it is the general animus against intellectual property by folk often only too keen to take from others what they have neither earned nor paid for.

The desire for the unearned is legion. The arguments against so called “patent trolls” is just one of its latest and less attractive manifestations.

* * * *

*Yes, there are foolish patents granted, but this is an argument for improving the Patent Office, not to demolish patents altogether.

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17 Comments:

Anonymous Fentex said...

Patent Troll has a particular meaning. It is not simply a patent holder who attempts to enforce their patent.

It is a term that implies someone abusing the system by such means as claiming improper patent applicability in concert with threat of legal entanglement or penalties to extort unreasonable and unsupportable fees.

If it was just meant to refer to patent holders then there'd be no need to include 'troll', one would just say 'Death to patents' if that were ones meaning.

Supposing one supports patents as a concept and legal principle would not exclude the possibility of people abusing the legal mechanism as a means to extort wealth.

3/19/2013 06:02:00 pm  
Anonymous Richard said...

Death to patents.

Patents are artificial, unjust, state mandated and enforced monopolies.

3/19/2013 11:46:00 pm  
Anonymous Richard said...

If ‘property rights’ is the answer, what’s the question?

3/19/2013 11:52:00 pm  
Anonymous Anonymous said...

Patent trolls are real. For homework find what a continuation-in-part is and how it is used. Then tell that there are no patent trolls.

The article reads like it was filched out of Ayn Rand the well known author. Don't believe in everything she wrote but. She made some fine contribution and She also make mistakes and got things wrong tooo. So does the article.

Amit Cim PhD

Amit Cim

3/20/2013 03:22:00 am  
Blogger Dinther said...

I don't think those opposing patents necessarily oppose intellectual property rights.

The patent system is terribly flawed and many patents files unbelievably trivial such as "Rounded corners on a tablet device" ( Patent No: D670,286 )

This has absolutely nothing to do with intellectual property rights.

Patent trolls abuse the patent system. Filing bullshit patents is one of the abuses.

Realistically, I could not write a single application without breaching a hand full of patents. Hiring patent lawyers to do proper patent searches would kill every project. Even the big guys don't do that anymore and fight it out later.

Result, small producers shy away from taking inventions to productions.

I say YES to Intellectual property rights. But this requires a tighter definition of what intellectual property actually entails.

"Death to patent trolls"

3/20/2013 11:50:00 am  
Blogger Peter Cresswell said...

@Fentex: "Patent Troll has a particular meaning. It is not simply a patent holder who attempts to enforce their patent."

You haven't been reading those who oppose patents. People like Richard.

@Richard: You have the wrong conclusion because you have the wrong answer to your question. The foundation of property is not scarcity, it's the creation of new values. Furthermore, "we" don't "give" ownership, the process is one of recognising ownership.
PS: Death, or at least flat beer, to those who oppose patents.

@Amit: Blog trolls are certainly real.
For homework, find out how a continuation-in-part helps inventors protect their work while they continue its development.
Your comment reads like it was filched out of random word generator.

@Dinther: You don't think those opposing patents necessarily oppose intellectual property rights? Then you clearly haven't been keeping up with the wave of modern-day attacks on patents and intellectual property rights by intellectual pygmies ignorant of the base of property rights. People, often at organisations like Cato, Reason and the Mises Institute, who should know a lot better but who give succour and comfort to parasites on the results of other people's intellectual effort.

Death to patent thieves.

3/20/2013 12:54:00 pm  
Anonymous Ed Snack said...

I'd agree with your assertion that the primary problem relates to the quality of many patents, and that the effort would be far better spent on improving the issuing and cleaning out what has already been granted. Patents for methods especially should be subject to far closer scrutiny and be much harder to obtain. Virtually all of the online shopping related patents are, IMHO, bogus.

Mind you, wouldn't necessarily be cheap or easy.

3/20/2013 02:57:00 pm  
Anonymous Anonymous said...

Mister PeterCresswell

OK. I do your homework for you. then since you want to attck messenger and get personal I give you something about you.

Fisrt part is about continuation in part. This is a lot of my time and work to type but I stay home so I can spend some time on it for you.

Second is questions about you. Since you want to get personal over this all.

Amit Cim

3/20/2013 07:37:00 pm  
Anonymous Anonymous said...

About continuation in part.

A continuation in part is pretended to be for assisting the patent applicant (the inventor and the applicant are not necessarily the same) by allowing file amendments to what he claims as his invention back dated to the original priority. It supposed to save him filing and examination costs. That is the excuse. The main key thing is keeping that priority even after making changes to the claimed intellectual property.

What plays out really is that applicants can file a specification as catch-all as can be get away with. Real general as broad in claim as can be. Then every so often the specification and claims get amended, always making sure that the patent application never goes to grant. Wait and amend. Wait and amend. Folow technology. keep up to date with what is happening. Keep amending in the light of what is already happening at the market, what other people are doing and, what is expected from their development work. Amend. Amend again. Keep at it until KAPOW! some other fellow brings something superficially similar to market, something which the scope of claim can be twisted into such a form as to cover it, something that is worth a good big money if you can get a piece of the action of it. Then amend to make sure the scope of claim covers the other fellow's stuff and now take the patent go to grant. Look at that, WOW a patent with a usefully early priority!!!!!

3/20/2013 07:42:00 pm  
Anonymous Anonymous said...

Ahhhhhh. Oh no. Missed part out. Pushed the orange button too soon. here is the missing bit about continuation in part.


Next what happens is that the threat of terible penalties and court and injunction and that drama is invoked aginst the fellow who has gotten his stuff into the market. Tripe damages and costs and fees and all that.

It goes like this. A letter is issued and then the legal people wrangle with each other and charge megafees. Then after a bit of troubles and blood flowing then a deal is done, then the blackmail is paid out. Patent troll happy. Everyone else loses and pay extra to compensate for the bribe overhead. Mostly these never get near a couthouse because even for big companies and rich people court is too expensive an idea to entertain. And that is how it is wth a continuation in part. Real easy to do tooooo.

How does that help a inventor? It doesn't. Even when he has millions of dollars to blow on fighting in courts and stuff cip is not designed to assist his wellbeing. To play in this game he needs millions of dollars to litigate. The real big guys can keep you waiting for a day in court and a final judgement for 20 years. Patent dead then anyway.

3/20/2013 07:44:00 pm  
Anonymous Anonymous said...

For Mister Cresswell

O. You got personal. So sad you try to hurt the messanger again. Badness from you. I use a translator package and get help from all of my friends to do English language. I can read it but it is much harder for writing in. My landlord is very good and he helps me. My mistakes are mine and I try to improve but you should not try hurting me for that. Badness from you. Time you get it back.

Now you have been told all about how cip is working. But you had no idea what cip. What you did was run to the USPTO or some patent attorney site and look it up so you could pretend! Of course you got the usual happy and untrue story from them. No way they tell you like how it is. Too much to lose for them if people all tuned in to what the patent industry is really all about.

I ask you. What professional experience do you have with patents? I am asking you for the direct experience. Not what you have been reading. not what Ayn Rand said about it.

I ask you. Are you in practice? Do you have any patents? Have you appeared in patent litigation and on patent matters? What is your experience and qualification in intellectual property? I wait to hear back from you soon.


Amit Cim

3/20/2013 07:56:00 pm  
Anonymous Fentex said...

You haven't been reading those who oppose patents.

I've read many opinions of what is a very broad topic with a lot of fiddly wrinkles and details and I've spent a lot of time with it.

I have my own opinions, but right now on the topic of opinions I have a question.

Your post, if I understand you, takes the position that patents acknowledge property created by intellectual effort.

Where does this leave, in your philosophy, the defence of independent invention?

3/20/2013 08:10:00 pm  
Anonymous Barry said...

Targeting NPEs is stupid. The original inventor can engage in extortion on a weak patent. And many NPEs are legitimate businesses enforcing solid patents where there is real infringement. For more on Thomas Edison as a troll, see Was Thomas Edison a Patent Troll? .

3/20/2013 10:24:00 pm  
Blogger Sam P said...

Bravo PC!

3/21/2013 12:18:00 pm  
Blogger Roy Davidson said...

Good IP debate coming up between Robert Wenzel at economic policy journal and Stefan Kinsella. I look forward to it

3/22/2013 11:08:00 am  
Anonymous Dale Halling said...

Dear Dither,

Perhaps you should get a little education rather than repeating nonsense. A design patent is for the look of a device and nowhere does the patent or the examination say that Apple got a patent for rounded corners.

3/25/2013 06:39:00 pm  
Anonymous Dale Halling said...

Dinther,

Perhaps a little knowledge would help the debate. I suggest learning the difference between a design patent and a utility patent.

By the way nowhere does the design patent or the prosecution suggests that Apple got a patent for rounded corners. That was a journalist with no knowledge pushing an agenda. Again a little knowledge would not hurt.

3/25/2013 06:42:00 pm  

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