Perk up! Stimulating patent troll legislation brewing in Congress

Perk up! Stimulating patent troll legislation brewing in Congress

Summary: Legitimate patent owners won't be substantially negatively impacted by this bill. It's a little weak (leaving the door open to the big-boy trolls who use a different bag of tricks), but it's good, robust progress.

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Once or twice a year (if we're very, very lucky), Congress surprises me by doing something actually useful. Amidst all the crying about the NSA and the various arguments about whether we should be allowed to use the world "holiday" to describe the holiday season, one lone Congress-critter has stepped up to the coffee bar and shown his Venti-sized cups.

In this case, it's legislation (PDF) proposed by one Representative Bob Goodlatte (who, until there's a Senator Caffeine, holds the honor of being my favoritely-named politician). Goodlatte has brewed up a bill called the "Innovation Act" that aims to go after those nasty patent trolls who have a tendency to be little more than protection rackets.

Let's establish a couple of basic parameters for this discussion. First, patents are good things. Patent holders have the right to protect patents, and they should have the right to do so. That's innovation, too.

What patent trolls do is buy up a bunch of patents (often relatively weak ones) and start to spam-sue everyone in sight. This is different from, say, Microsoft, IBM, or Google buying up companies for their patents to protect their products or their products' turf. Patent trolls have been doing nasty things like dropping lawsuits on the end-users of technology.

For example, there are a bunch of lawsuits out there where users of WiFi routers (the suit is particularly going after restaurants) are being sued for using an unlicensed patent. This isn't going after Cisco or Buffalo or other router makers, it's going after the customers. This is just plain nasty.

Goodlatte's bill "espressly" goes after these two-day-old-coffee-ground-scum-in-the-bottom-of-the-cup patent trolls, by specifically stating that end-users of a product can't be sued for patent violations.

The Goodlatte stirs in some other steamy elements in his bill. For example, his bill might encourage more victims to fight, rather than settle.

Here's how it works today. Some scummy patent troll says you're in violation of their patent. If you pony up, say, five grand for a "license," they'll go away and annoy someone else. You do the math. Fighting would cost well more than $5K, so you settle, even if the troll really doesn't have much of a knobby leg to stand on.

Goodlatte's bill would allow defendants to sue for legal expenses if they win the patent case. So, if the defendant is pretty sure the case doesn't hold water, they might be more willing to fight to the tune of tens of thousands of dollars in legal fees, because they stand a chance of getting that money back and giving the patent trolls some lumps in the process. Sweet. 

Other aspects of the bill require plaintiffs to actually describe the foundation case of their lawsuit. Let's go back to Trolls 'R Us for a moment. Let's say they have a patent on the filtering technology used in coffee makers and you've been known to drip with irony.

They can sue you claiming patent violation, and then demand you turn over all sorts of detailed information about your company. This is called discovery. The trolls paw through that information in the hopes they can find something incriminating. The unfairness of the way things are today is the trolls don't really have to know that you're infringing on a patent. They can blind-spam everyone and see what low hanging fruit offers to settle.

Goodlatte's warm bill of goodness would force patent plaintiffs to make their case upfront, identify with some degree of specificity the area the defendant is infringing. This alone could kick a lot of nuisance cases right out the front door, without the opportunity to add milk or sugar, or even buy a scone.

In my opinion, legitimate patent owners won't be substantially negatively impacted by this bill. It's a little weak (leaving the door open to the big-boy trolls who use a different bag of tricks), but it's good, robust progress.

Make no beans about it, at least one politician is working when he shows up to the daily grind.

Topics: Patents, Government US

About

David Gewirtz, Distinguished Lecturer at CBS Interactive, is an author, U.S. policy advisor, and computer scientist. He is featured in the History Channel special The President's Book of Secrets and is a member of the National Press Club.

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36 comments
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  • the most immoral companies Microsoft + Apple are the biggest patent trolls:

    the most immoral companies Microsoft + Apple are the biggest patent trolls:

    Patent war goes nuclear: Microsoft, Apple-owned “Rockstar” sues Google

    http://arstechnica.com/tech-policy/2013/10/patent-war-goes-nuclear-microsoft-apple-owned-rockstar-sues-google/

    and they all paid to the US gov so they can do whatever they want
    anywherehome
    • So, what you are really saying is that

      The problem is a corrupt government on the take. Because your evil corporations are actually powerless in the face of an honest government or a limited government.

      But, of course, a corrupt government loves it when they can get you thinking said government is also a poor victim. It's kind of like a mugger blaming the bank for not loaning him money as he beats you senseless.
      baggins_z
      • yes, "all paid" = bribed

        yes, "all paid" = bribed ... not in a contradiction

        both sides are rotten

        but the US gov is the worst of course:

        http://bit.ly/RYzOPP

        is it clear now?
        anywherehome
      • A limited government?

        Not necessarily. A limited government can be just as corrupt as an "unlimited" one (as the Tammany Society of New York and any number of other political machines have frequently demonstrated; remembering that municipal governments are limited by definition). And as far as I can tell, few Americans favor unlimited government; the controversies are over where the limits should be, not on whether they should exist.
        John L. Ries
        • Exactly...

          Instead of focusing on 'limited' we instead aim for accountable.
          revspaminator
      • Who is more guilty?

        The briber or the bribee?
        John L. Ries
    • David Gewirtz conveniently omitted any reference to the Rockstar Consortium

      which, in addition to Microsoft and Apple, includes BlackBerry, Ericsson, and Sony:

      http://en.wikipedia.org/wiki/Rockstar_Consortium

      And now, apparently, Spherix is involved ...

      "Spherix Incorporated, a company originally founded by Gilbert Levin, has acquired four families of mobile communication patents from the Rockstar Consortium in exchange for initial consideration of up-front cash and Spherix common stock. Rockstar will also receive a percentage of future profits from Spherix after recovery of patent monetization costs and an initial priority return on investment to Spherix." [see the above Wikipedia link]

      And the beat goes on ...

      P.S. David Gewirtz also failed to mention the 2011 America Invents Act which represents a prior attempt by the U.S. Congress and President to tame the software patent beast.
      Rabid Howler Monkey
  • Oh boy.

    Do you know that Google is the biggest lobbiest? They have been giving more money to the US government, than Apple and Microsoft combined.
    CUDA_Crunchers
    • yes, Google has to defend but Google doesn't bribe like Microosft+Apple do

      yes, Google has to defend in a legal way but Google doesn't bribe like Microosft + Apple do
      anywherehome
      • If Google isn't bribing (via lobbying), then

        Microsoft and Apple aren't either, though I'm not sure what you mean by them paying the government. Bribery is illegal. Lobbying isn't (though I wish it were).

        Just because you hate Microsoft and Apple, doesn't make them any different than Google. I like Microsoft (for the most part) and dislike Google and Apple (for the most part), but in all cases, they are large companies made up of many people who all have flaws. So every company has plenty of possibility of doing things wrong, just like the US government.
        grayknight
  • Huh?

    I though Congress was constitutionally barred from doing anything other than staging symbolic votes to repeal the Affordable Care Act?

    At any rate, the patent system and current IP law in general is a mess. It's holding back innovation, progress and the economy more than it helps. Reforms are clearly needed in this area.
    dsf3g
    • I always love the "holding back progress" banter in these comments....

      ..it's like you want everyone to believe that the iPhone, iPad, Tablets, cancer drugs, top-drive-oil rigs, Android don't exist...

      Apparently progress is still happening, despite current IP laws.
      daftkey
      • Maybe

        Maybe it's because I have personal experience with this issue. Some years ago I ran a college language lab. We had a video series that I wanted to digitize and put on our media server. So I contacted the copyright owners and sought permission to do so. The copyright owner refused... but not for the reasons you might suspect. In fact, the copyright owner would have been perfectly happy for us to do so, except that at the time there was a patent troll holding company suing educational institutions because it held on of these laughably broad patents and claimed that it, basically, had IP rights over digital media streaming. The owner of the video series I wanted to digitize was afraid that if he gave me permission, this patent troll would go after them, too.

        You say that the fact that Android exists is proof that our ridiculous IP laws aren't holding back innovation? That's just B.S. If you're a billion dollar company like Samsung, Google, Apple or Microsoft who has legions of corporate attorneys on your payroll and can afford to spend millions per year fighting spurious IP related legal claims, then yes, you can roll along quite well, even in this awful, litigious environment. But if you're a small company with a new idea and want to become a big company, you basically have to plow critical cash reserves into paying off patent extortion artists, or just go ahead and sell yourself to a company that is already big enough to not care.

        That's not innovation. That's a recipe for oligopolistic markets.
        dsf3g
  • Coffee?

    Was there any coffee puns in that article? I didn't see any...
    THavoc
    • I like coffee puns.

      The only one missing is the one about Java crashes. Purine alkaloidism!
      jallan32
  • Not likely..

    How can you hope for anything good from a "band of bastards" that have made themselves exempt from insider trading laws?
    This is just about the normal time to propose stuff that will cost the "in" group money so that the "leaders" can get paid off to just let it die.
    bhaskins@...
  • Needed some coffee today?

    :)

    Good to hear that there are law makers doing actual work. A good start for reforming patent usage.
    grayknight
  • NOT GOING FAR ENOUGH !!

    Patents exist supposedly to help innovation by protecting the revenue streams of inventors/manufacturers.
    One particularly troublesome sub-species of patent troll shouold have no rights: i.e. those who simply own the paper without any history of relevant research or manufacture.
    They are inherently anti-innovation and should be specifically banned.
    It is only a general suggestion with many implementation issues but the point is to defend the original spirit of patents.
    Steve__Jobs
    • Such a rule would hurt many small inventors...

      The original spirit of patents, as you say, is to protect the revenue stream of the inventor. Well, many many patents are built for systems that are so complex that the only way the original inventor can monetize the patent is to sell it to a larger company.

      Forcing patent holders to either be the on the inventing end or the manufacturing end of the patent process would destroy the marketability of a patent. This would do more to hurt small inventors and research companies than it would improve the system.
      daftkey
      • We could always exempt the original patentee

        But the real problem is that there are too many patents in circulation that should never have been granted in the first place. Patents on substantial inventions would probably not be attractive as speculative instruments (too expensive).
        John L. Ries