more on Patent reform in Congress

[David Farber <dave () farber net>]

Begin forwarded message:

From: Jason Schultz <jason () eff org>
Date: May 16, 2005 12:25:02 PM EDT
To: info () raisch com
Cc: dave () farber net
Subject: Re: [IP] Patent reform in Congress


Rob,

You've hit the nail right on the head.  Defining patent "trolls" is  
not as simple as saying its any entity that didn't invent or doesn't  
commercialize a product, just like defining spam and spyware are  
difficult out-of-context.  The key to defining trolls appropriately  
is within step #3 on your list -- the reason you did not  
commercialize it yourself.  For some inventors in some industries,  
e.g., semiconductor manufacturing or biotech, it is nearly impossible  
for anyone without billions in capitalization to effectively  
commercialize inventions.  However, in other industries, e.g. e- 
commerce or various forms of software engineering, it is much  
easier.  The vast majority of troll complaints come from the latter  
and not the former.  Thus, the key is context -- why did the inventor  
assign the patent to the alleged troll? Was it because they were  
understandably unable to commercialize it? Or was it because there  
was no commercial market for it but rather (because of broad claims  
and the cost of litigation) a market for leveraging large settlements  
out of companies, both large and small.

These distinction are important because patents are not supposed to  
be universally fungible commodities like a car or a house or even a  
piece of real estate, where any sale for profit is considered a good  
sale.  Rather, patents are government grants that are meant to be  
given only when they serve the public interes, i.e. they are only  
supposed to subsist as a tool to help promote actual innovation and  
commercialization of technology.  If a company buys a patent that  
never contributed to any such innovation or development, then it is  
against the public interest to allow that patent to be unfairly  
exploited via litigation. On the other hand, if the patent did make  
such a contribution, the inventor is owed some compensation.  Drawing  
that fine line has proven to be a tricky task, but it is nonetheless  
an important distinction to bear in mind when determining who's a  
troll and who's a talented innovator.

Jason Schultz
Staff Attorney
Electronic Frontier Foundation

On May 16, 2005, at 6:55 AM, David Farber wrote:


> Begin forwarded message:
>
> From: Rob Raisch <info () raisch com>
> Date: May 15, 2005 6:24:37 PM EDT
> To: dave () farber net
> Subject: Re: [IP] Patent reform in Congress
>
>
> Ok, I'm slow about these kinds of things, so let me get this right...
>
> 1. I invent something useful,
> 2. I patent it (which gives me the right to exploit my invention  
> for a period of time), and
> 3. I then sell that right to someone else because for whatever  
> reason I am unable to commercialize it myself.
> So, the new patent-holder finds an infringer and decides to protect  
> their newly purchased property rights?  And that's a "troll"?
> Sounds like the infringer has been amazingly lazy, not done the  
> requisite IP homework, and has made money off of an idea they do  
> not own and had no rights to exploit.
>
> What am I missing?
> /rr
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------------------------------------------------------------------------ 
------
Jason M. Schultz                (415) 436-9333 x 112
Staff Attorney                     jason () eff org
Electronic Frontier Foundation        www.eff.org



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