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Patent Troll Myths
patentlyo.com
"[A]bout 26% of the patents [in the study] were inventor owned, and a comparison with the percentage of individual inventors represented in litigation generally shows that trolls serve an important role in enforcing individual inventor patents."
Completely non-novel patents being awarded by the thousands is the real problem. If the "trolls" were really just enforcing interesting and valid patents on behalf of individual inventors, that's one thing. But they're instead finding the most broad patents they can and using them to extort money from companies who are successful, sometimes regardless of applicability of the patent to the companies in question.
The fact that software can be patented at all is questionable in my opinion -- anything sufficiently complicated to be worthy of a software patent would be copyrightable. Anything less complicated should be held to an extremely high standard of novelty before being allowed a patent -- and even then I would put the time limit on such a patent at 5 years or less.
Just having an "idea" that no one has happened to already patent yet and sitting on until someone else thinks of it and implements it doesn't "promote the Progress of Science and useful Arts", which is the underlying mission of all IP protections in the US at least.
The patent database is full of so much noise that no one is mining it for ideas and creating software based on it at this point; instead everyone is coming up with similar ideas, and pretty much BY DEFINITION those patents shouldn't be valid.
Another area of surprise was patent quality. While trolls almost never won their cases if they went to judgment (only three cases led to an infringement finding on the merits), the percentage of patents invalidated on the merits was lower than I expected. A total of 43 patents had validity adjudicated on the merits. Only 4 were found completely valid. Another 23 were held completely invalid, and the rest were partially valid.
I would assert that the number of patents found invalid is not a measure of "quality" in itself (if "quality" even exists in software patents). Lack of invalidation could just as much be a measure of the courts brokenness or defendants desire to settle or any number of things.
Just as much, the number of patents created by small operations is not a measure of their quality, validity or innovativeness.
One could look at the patents themselves and we've seen a number of egregious patents here. However, our "myth busting" patent-specializing law professor somehow does get around to that.
While I hate patent trolls as much as the next small technology business owner, the trolls themselves aren't the problem. Completely non-novel patents being awarded by the thousands is the real problem. If the "trolls" were really just enforcing interesting and valid patents on behalf of individual inventors, that's one thing. But they're instead finding the most broad patents they can and using them to extort money…
The "don't blame the player, blame the game" argument appears here regularly. I think it's valid in those places where the players don't make the rules. But in a variety of concentrated industries in the US, big players, rule-enforcer and rule-makes are so closely tied that it is crucial that we aim at all of them if we're going to address a given problem in a given industry.
I'm always suspicious when an article starts talking about "myths" Another area of surprise was patent quality. While trolls almost never won their cases if they went to judgment (only three cases led to an infringement finding on the merits), the percentage of patents invalidated on the merits was lower than I expected. A total of 43 patents had validity adjudicated on the merits. Only 4 were found completely valid.…
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1792442
To summarize poorly, he admits that there might be some selection bias in which patents are defended but generally finds that Patent Trolls are just about as effective (or ineffective) in court cases as the general patent-owner population. You suggest (and I agree!) that the courts and current patent systems are ill-equipped to handle software patents effectively, but his systematic look at the evidence, compared to the excellent anecdotal look TAL provided, suggests that for the largest, most systematic trolls, the patents asserted aren't much worse than non-troll patents.
I highly suggest the full-paper, or at least the final conclusions section.
I'm always suspicious when an article starts talking about "myths" Another area of surprise was patent quality. While trolls almost never won their cases if they went to judgment (only three cases led to an infringement finding on the merits), the percentage of patents invalidated on the merits was lower than I expected. A total of 43 patents had validity adjudicated on the merits. Only 4 were found completely valid.…
While I hate patent trolls as much as the next small technology business owner, the trolls themselves aren't the problem. Completely non-novel patents being awarded by the thousands is the real problem. If the "trolls" were really just enforcing interesting and valid patents on behalf of individual inventors, that's one thing. But they're instead finding the most broad patents they can and using them to extort money…
Patent trolls personally are a significant part of the problem in the sense that for every dollar won in a troll lawsuit, some high fraction will go lobbying the state for more patent laws allowing them to sue for more dollars. The "don't blame the player, blame the game" argument appears here regularly. I think it's valid in those places where the players don't make the rules. But in a variety of concentrated indust…
If you want to fight trolls mano-a-mano in lawsuits to either invalidate patents or at least knock them down in relation to a particular product or company, then more power to you, but I personally would find it terrifying to fight such a lawsuit myself if my company DEPENDS on the victory of the lawsuit.
I'd gladly (once my company is profitable, anyway) donate to the cause to help take a troll down, however. :)
I'm always suspicious when an article starts talking about "myths" Another area of surprise was patent quality. While trolls almost never won their cases if they went to judgment (only three cases led to an infringement finding on the merits), the percentage of patents invalidated on the merits was lower than I expected. A total of 43 patents had validity adjudicated on the merits. Only 4 were found completely valid.…
He addresses a number of your points, briefly in the article and more in-depth in his full paper, which is downloadable free of charge: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1792442 To summarize poorly, he admits that there might be some selection bias in which patents are defended but generally finds that Patent Trolls are just about as effective (or ineffective) in court cases as the general patent-own…