Patent trolls suck. (I own that)
January 23, 2006 4:56 PM   Subscribe

Where can a company that owns nothing but legal documents force another company that actually does make products to pay them? In the USA! You too can be a patent troll. Just patent any dumb idea you have -- you'll certainly be awarded the patent -- then sue anyone who makes a product that looks remotely like it could be based on your idea. Congratulations! You made money by punishing people who actually make things! Hooray!
posted by raaka (21 comments total)
Of course, $10,000 a patent for something you probably won't get to sue anyone about is the entry cost...
posted by fuerloins at 5:06 PM on January 23, 2006

Has anyone tried challenging the constitutionality of patents granted to those who make no attempt to bring their inventions to market?

IANAL, but I believe intellectual property rights in the U.S. stem from Article I of the Constitution:

"To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"

Therefore, Congress does not have the power to grant patents that do not promote progress.
posted by justkevin at 5:13 PM on January 23, 2006

Fuerloins, onem their link to the actual fee dosn't work. Most of those charges then are charges for people too lazy to do it themselves. Two, i found the information regarding current fees, and it is quite the cluster fuck.
posted by sourbrew at 5:14 PM on January 23, 2006

justkevin, lol that congress wants teh progress.
posted by sourbrew at 5:15 PM on January 23, 2006

someone doesn't like patents
posted by caddis at 5:22 PM on January 23, 2006

JustKevin: The Supreme Court decided this issue a very long time ago and put it to rest once and for all in 1908 decision Continental Paper Bag in which it found that non-practicing inventors are still entitled to injunctions to exclude others.

But actually, once and for all doesn't mean once and for all, because that decision will be under review this term in Ebay v. MercExchange. There's plenty of writing about that case on the web, as it will be one of the most important Supreme Court cases on patents in 20 years. The economics of NPEs ("non practicing entites") are fairly complex and this is by no means a black and white issue. Consider this: Microsoft and the EFF are on the same side.
posted by The Bellman at 5:24 PM on January 23, 2006

Does anyone have more details on the last few sentences of the New Yorker article, particularly: "The BlackBerry mess is a case in point: in the past year, the Patent Office has reëxamined N.T.P.’s eight patents, and issued preliminary rulings declaring them, and the nineteen hundred claims they contain, invalid. Until those patents are formally invalidated, however, R.I.M. is still on the hook, so it may end up paying for infringements that it never committed."

I hadn't heard this angle. Is the Patent Office actually moving to invalidate N.T.P.'s patents?
posted by mr_roboto at 5:34 PM on January 23, 2006

Bellman: Thanks for that. Before I have a chance to read the decision, can you summarize the Court's reasoning?
posted by justkevin at 5:39 PM on January 23, 2006

I happen to think that the NTP patent is silly (not to mention the entire category of "business process" patents) but this FPP is just a newsfilter turned into a polemic. There is a great deal to be said about patent law, its origins, its problems, etc. Lets try getting some of that included and bring about a historically informed debate.
posted by afflatus at 5:40 PM on January 23, 2006

A proper patent as originally conceived provides a recipe for the garage workshop tinkerer.

Its supposed to be give and take: In exchange for enabling a person "of ordinary skill in the art" to replicate your experiment, hoping they improve it; you receive the right to stake out a limited temporary territory.
posted by StickyCarpet at 5:48 PM on January 23, 2006

Sure, JustKevin -- the reasoning comes from the patent statute, which states that patent rights are to be considered "property rights" to the greatest extent possible. The "very essence" or a property right, according to the Court, is the right to exclude others from using or taking advantage of one's property. The key phrase from the decision is:

"From the character of the right of the patentee we may judge of his remedies. It hardly needs to be pointed out that the right can only retain its attribute of exclusiveness by a prevention of its violation. Anything but prevention takes away the privilege which the law confers upon the patentee."

In other words, property is all about excluding others, and when we are talking about property we don't generally ask why. If you own a piece of lovely piece of land it might well benefit society (and cost you nothing) if people were allowed to picnic on it, but we don't say that you have to allow that -- you have your reasons for saying no.

The Court has traditionally said that Congress made up its mind as to what remedies would best "promote science and the useful arts" and that the Court shouldn't second guess them:

"[I[t is certainly disputable that the nonuse was unreasonable, or that the rights of the public were involved. There was no question of a diminished supply or of increase of prices, and can it be said, as a matter of law, that a nonuse was unreasonable which had for its motive the saving of the expense that would have been involved by changing the equipment of a factory from one set of machines to another? And even if the old machines could have been altered, the expense would have been considerable. As to the suggestion that competitors were excluded from the use of the new patent, we answer that such exclusion may be said to have been of the very essence of the right conferred by the patent, as it is the privilege of any owner of property to use or not use it, without question of motive. . . .

We have seen that it has been the judgment of Congress from the beginning that the sciences and the useful arts could be best advanced by giving an exclusive right to an inventor. . . .It is manifest, as is said in Walker on Patents, 106, that Congress has not 'overlooked the subject of nonuser of patented inventions.' And another fact may be mentioned. In some foreign countries the right granted to an inventor is affected by nonuse. This policy, we must assume, Congress has not been ignorant of nor of its effects. It has, nevertheless, selected another policy; it has continued that policy through many years. We may assume that experience has demonstrated its wisdom and beneficial effect upon the arts and sciences."

So the Court is saying (in 1908) that Congress has looked at the issue and decided that non-use shouldn't matter and that exclusion should be the rule.

Now, however, that decision is up for review. It's an interesting question: most of big business (notably the BSA) badly wants the automatic injunction rule stopped -- they agree with you that NPEs shouldn't get that protection. The wing of the Court that usually responds well to big business, however, should (ideologically) support the choice Congress has made. If they don't they are technically being "activist" judges and we know how rotten that is!
posted by The Bellman at 6:43 PM on January 23, 2006

On the bright side, maybe this case will force Congress to fix the patent system. Need I remind you how many people in Washington live by their Blackberries?
posted by fungible at 6:55 PM on January 23, 2006

No need to remind, but I'm not worried that there will be any catastrophic breakdown in communications between Congresswhores and their clientele. In the long term.
posted by longsleeves at 7:12 PM on January 23, 2006

If the result of the inventor's work is not an alienable piece of property, (capable of sale), the following will happen:
(1) Inventors without the capability to manufacture their patents cannot make money off of them.
(2) Some inventions will not be brought to market.

I love my blackberry. But NTP, if their patents are found to be valid, have a right to enforce those patents. Even if they never brought a product to market.

Our patent system rocks compared to that of Europe and Japan, where IP theft is essentially the rule. Any little bell or whistle pulls an invention free of the original patent.
posted by Ironmouth at 7:25 PM on January 23, 2006

Blackberry will be fine. There is too much money at stake for the market to just let it collapse. The underlying rationale behind the ruling may be questionable, but this shouldn't have a marked material affect on anyone's lives besides the owner's of RIM stock.
posted by gagglezoomer at 7:28 PM on January 23, 2006

On the bright side, maybe this case will force Congress to fix the patent system. Need I remind you how many people in Washington live by their Blackberries?
posted by fungible at 9:55 PM EST on January 23 [!]

Blackberry service isn't going away. How would the patent owner ever make money from that? It is a threat, which might be played for a short period but likely not, useful primarily to obtain a higher licensing fee. Rim isn't too eager to settle prematurely because of the PTO's re-exams and the inevitable appeals to come. Generally validity is decided in courts as the person challenging the patent has much more control over the proceedings there. Here, we have a major action occurring in the PTO, which adds confusion to the case, but in the end it is still headed back to the judicial system due to the sums at risk. Bottom line, if you have a CrackBerry habit, you will not be going cold turkey, at least not for more than a very short period and even that is highly, highly doubtful.

If you want to read about patent abuse (or was it just smart application of the existing law), the BlackBerry saga is not it. You need to delve into the world of Jerome Lemelson. Here is a taste. The whole story is so much more fascinating.
posted by caddis at 7:40 PM on January 23, 2006

On the bright side, maybe this case will force Congress to fix the patent system. Need I remind you how many people in Washington live by their Blackberries?

This is exactly the reason that NTP have been so "generous" in making an exclusion for government employees, should a shutdown occur.
posted by joquarky at 1:13 AM on January 24, 2006

Our patent system rocks compared to that of Europe and Japan, where IP theft is essentially the rule. Any little bell or whistle pulls an invention free of the original patent

Are you an IP lawyer by any chance?
posted by salmacis at 1:21 AM on January 24, 2006

I once worked for a company that made networking gear for Apple II computers. Not long after we started selling these things in the US market, we got threatened with court action by a little US company that had, somehow, managed to obtain a patent on what boiled down to just about any form of poll-select network.

It cost us less to pay the patent-holder what it wanted than it would have cost us to get the patent invalidated (which it clearly should have been; there were poll-select systems in use all over the place for many many years before this patent was granted).

Maybe the US patent system does indeed rock, but it would rock a lot harder and suck a lot less if the USPTO were better at identifying prior art before granting what amounts to an IP squatter's right.
posted by flabdablet at 2:30 AM on January 24, 2006

My Dad works with this guy Ed Pool, on Ed's patent, which covers all world trade. Kinda broad, don't you think?

It covers the use of anything more advanced than a CSV spreadsheet to track international transactions.

He's suing Dell first.

What's pathetic is, he'll probably win, and sue more people.
posted by blasdelf at 3:24 AM on January 24, 2006

This RIM case wouldn't be half as infuriating if that idiot judge didn't clearly vocalize how much he feels he has better things to do with his life than deal out fair judgements. Or due process. Or think.
posted by RockCorpse at 8:23 AM on January 24, 2006

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