Anti-patent-troll ads launch on radio and in print in 15 states: miss the big picture

by Stephan Kinsella on September 1, 2013

My comments on a Facebook post about this ars technica article, Anti-patent-troll ads launch on radio and in print in 15 states:

Sigh. The problem is never addressed, even by these people. Even if Congress were to somehow get rid of “bad patents” (which is impossible, as the patentability standards are inherently vague and administered by a necessarily imperfect bureaucracy) and to get rid of “trolls” by requiring all patent law suits to be asserted by a patentee who is actually “working” his patent (making an actual product that his own patent claims), and even if Congress were to eliminate software patents (which is difficult to do)—and there is zero chance Congress will do any of these things—it still would hardly put a dent in the real problem.

Here’s why. First, even though it’s expensive to defend against patent lawsuits even if it’s a “bad patent,” at least there is a good chance of winning in such cases. But not all lawsuits from trolls are based on “bad patents”. Many patents asserted by trolls are perfectly valid, under PTO rules. For such patents, there is no defense. However, at least the troll only wants money. If a non-troll—like, a competitor—asserts the patent against poor mom and pop, often they want to seek an injunction to prevent mom/pop from continuing to sell the offending item.

Nor are all “bad patents” asserted by trolls. As noted, often they are asserted by a competitor or a company selling the patented product and keen to protect its monopoly turf.

And even if we got rid of all bad patents, and required all patent lawsuits to be asserted by so-called “practicing entities”: still, mom & pop would face the threat of harsh lawsuits from competitors or other practicing entitied, based on strong patents, i.e. those that cannot be invalidated in a lawsuit. Here, the problem is an existential one faced by the patent victim; it is not a mere royalty that the predator wants, they want to shut down their competition. It is not mere legal fees that is the problem: the problem is that even if you spend a billion dollars on the best lawyers, you’ll still lose—just like some kid caught red-handed selling cocaine is likely going to prison, no matter how much money mommy and daddy pay to white shoe defense attorneys. The problem is not that it’s hard to find good defense attorneys; the problem is the law itself is unjust.

If we reduce the trolling problem and the “patent quality” problem, and even if we reduce software patents, we do nothing to stop the real problem: “good” patents, asserted by non-trolls.

ALL THAT SAID: I am not opposed to incremental reform (see How to Improve Patent, Copyright, and Trademark Law). I just think we should be honest about its significance and not lose sight of the real meat of the issue. I would be in favor of some limitations as proposed by these groups, futile and minor as it might be. To my mind, this would be analogous to the feds announcing that henceforth all midnight drug raids would be double-checked by a second secret federal court to minimize the change of busting into the wrong residence in a drug raid. It would be analogous to a “taxpayer bill of rights” that does not lower the tax rates, but that gives the accused tax evader another layer or two of procedural wrangling the state has to go through before jailing him. It would be analogous to civil asset forfeiture reform that says the state can keep assets it seizes for no more than 10 years without a hearing. Etc. A slight improvement, maybe, but … thin gruel. Meh.

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