Patently Obvious Trolls

We live in a world where a “proprietary technology” that resembles pushing an elevator button – Amazon’s one-click online purchase system – has received a judicial affirmation as a viable patent. We watch as Apple and Samsung battle over the viability of design and applicable patents in the tablet/smart phone space. The world is witnessing the almost impossible task for a software designer to avoid the possibility of stepping on someone else’s underlying software patents. Even finding what those underlying patents might be is at best an expensive, and at worst an almost impossible task. As a result, for example, New Zealand’s legal system is moving out of the software patent universe. Given that our constitution enabled patents and copyrights in order to encourage creativity, we need to be very skeptical of any legal construct that stifles creativity with little or no overriding benefit to society as a whole.

In a parallel set of developments, reflecting macro-trends in each branch of the federal government, is a new focus on modifying or stopping so-called patent trolls – individuals and companies that buy up core patents in one or more categories with the primary goal of forcing people and firms that may have inadvertently stepped on those patents to pay very significant funds for such infringements. Such trolls are centered on making claims and litigating rather than in actually using the patents they have acquire to create and manufacture.

“The nation’s legal dockets are littered with patent case with varying degrees of merit, challenging everything from mobile phone push notifications and podcasting to online payment methods and public Wi-Fi. Some 2,600 companies were targeted in new patent lawsuits last year alone.

“Against that backdrop, Obama issued five executive orders on patent reform last summer. Among other things, they require the Patent and Trademark Office to stop issuing overly broad patents, and to force patent applicants to provide more details on what invention they are claiming. One of the orders opens up patent applications for public scrutiny — crowdsourcing — while they are in the approval stage, to help examiners locate prior art and assist with analyzing patent claims.

Since a patent is binding for 20 years, the impact of the new rules won’t be felt for some time. But they will be felt, says [Joe Gratz, a San Francisco-based patent lawyer who is representing Twitter in a patent dispute], a litigator who defends technology-heavy patent lawsuits. ‘The supply of overly broad, vague patents will start to dry up as new rules get put into place,’ he says… In January, Obama became the first president to elevate patent reform to a national meat-and-potatoes issue, when he used the State of the Union address to urge Congress to ‘pass a patent reform bill that allows our businesses to stay focused on innovation, not costly and needless litigation.’” Washington Post, March 20^th.

So-called “business method” patents were born in our courts, have exploded into our business world and given validity for often exceptionally minimal levels of invention. Patent trolls love these new “proprietary rights.” “Let’s let pushing a button to do something in the tangible world have patent value when that technology is now used to do something online.” Huh? But even as the executive branch of government is recognizing the issue, even our gridlocked Congress and our snail-paced judicial system are now drilling down on the underlying issues.

“The House passed major patent reform legislation last year, on a 325-91 vote, in a bid to even out the litigation playing field. Among other things, the Innovation Act requires plaintiffs in lawsuits to be more specific about what they believe is being infringed, and to identify the people who have financial interests behind a company. Perhaps most significantly, it requires that plaintiffs pay litigation expenses if they lose at trial.

“The bill also prohibits patent holders from suing mere users of a technology that allegedly infringes on an invention, like restaurants offering Wi-Fi access to their diners…The Senate is debating similar legislation in a piecemeal manner. Whatever it finally approves, the package will have to go back to the House for final approval before landing on the president’s desk.

“And the Supreme Court is mulling a case on whether patent trolls should pay legal fees to the other side if they lose in court and is even considering the hot-button issue of whether software — often at the center of modern patent disputes — is even patentable.” The Post. If we are to be a nation that builds increasing levels of technology as our primary growth and job-driver, we need to shift the balance of legal protection for minimal contributions to society towards a system that actually encourages real invention and creativity.

I’m Peter Dekom, and patent reform is only one part of redefining our society to maximize values for our country as a whole.