20 Sep 2013
Of Patents and Trolls…
Isaac Asimov, the famous science-fiction writer, died not long ago. In the obituary I read about him, there was one interesting statement he was quoted as saying during his life. One day, while apparently resting in his yard, he came up with the concept of bouncing a radio signal of a man-made object in space to send that signal to the other side of the Earth. Asimov was quoted as later saying, “If I had written that idea down and filed a patent, I would have been a billionaire.” His concept, of course, was that of a orbiting communications satellite–something commonplace today, but didn’t exist back at that time.
Isaac Asimov stated the exact problem with Patent Trolling occurring against US technology companies today. The patent laws in the United States do not protect something as simple a writing an idea down and saying you invented it (a little more, in fact, that Asimov said he did). The courts have ruled on that many times. What a patent law is designed to protect is the inventor’s investment in the development and marketing of the idea, to bring that idea into fruition as a viable product or service for consumption.
I love hearing business seminars where the speaker will joke about a product idea they once had: usually it is mint-scented toilet paper. While it is amusing, I say it is safe to assume that thousands of people have had that product idea at some point. Imagine if one of them took the time to patent it, then develop, manufacture and market that product. Then imagine what would happen if, to everyone’s surprise, the product took off and became a big hit.
At that point, other companies jump on the bandwagon and begin manufacturing and selling mint-scented toilet paper. It’s now a proven market, and a quick buck. But the patent-owner now has the right to legally approach these people producing the same product with cease-and-desist orders, or negotiate a license with the other manufacturers. This latter agreement would allow them to continue, but ensures the inventors are financially rewarded for their development efforts.
By granting an exclusive right to the invention via a patent, the inventor is protected from people attempting to shortcut the development cycle, and simply manufacture and market a product or service they did not invent–with no concern for the original inventors efforts to bring those ideas to fruition. It ensures that the inventor reaps the rewards of not only having come up with the idea, but manifesting the idea into a viable product or service that is marketable.
Patent Trolling results from an idea that stops after the patent is issued. The troll then goes after the product or service being developed and marketed, having done virtually nothing for development or other steps necessary to manifest the idea. This completely inverts the scenarios above. Instead of the law protecting the inventor and efforts to develop, manufacture and take to market, the law now “supposedly” protects the patent trolls ideas they only wrote down. The troll is really doing nothing more than setting a trap to steal the inventor’s harvest.
This is so wrong and harmful to promoting industries that require heavy time and investment–especially software development. Most times, the trolls are hoping not to have to go to court. They sue for just enough to make it unprofitable for the company they target to fight the case, instead of settle. Even though the Trolls may lose their battle in court, the amount of financial bleeding that occurs for the company trying to defend it could be devastating.
While the US Congress has been holding hearings on the problem of Patent Trolling, one US tech company has the best approach I have seen yet. They counter-sued the Patent Trolls under the Federal RICO Act: the anti-racketeering law which has been so useful in prosecuting mafia and gang members, where other laws have failed.
Whether or not the company wins the suit is uncertain, but at a minimum it should send a clear message about how the activity of Patent Trolling should be seen: as organized crime. The link to this article is below.
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