Life as a patent troll is hopefully set to get more difficult. In a memo describing patent trolls as a “drain on the American economy,” the White House this week outlined a number of steps it is taking to stem this evil tide. Chiming in, the Chief Judge of the Court of Appeals for the Federal Circuit (where patent cases are heard) in a New York Times op-ed laments the toll patent trolling is taking on the industry, and urges judges to use powers already at their disposal to make the practice less attractive. However, while certainly a step in the right direction, these measures all fail to address the more fundamental properties of the patent system allowing trolls to exist in the first place.
System and method for patent trolling
Most patent trolling operations comprise the same basic elements:
- One or more patents with broad claims.
- The patents of (1) acquired by an otherwise non-practising entity (troll).
- The entity of (2) filing numerous lawsuits alleging infringement of the patents of (1).
- The lawsuits of (3) targeting end users or retailers.
- The lawsuits of (3) listing as plaintiffs difficult to trace shell companies.
The recent legislative actions all take aim at the latter entries in this list. In so doing, they will no doubt cripple the trolls, but the trolls will remain alive, ready to resume their wicked ways once a new loophole is found in the system.
To kill a patent troll
As Judge Rader and his co-authors point out in the New York Times, “the problem stems largely from the fact that, […] trolls have an important strategic advantage over their adversaries: they don’t make anything.” This is the heart of the troll, and this is where the blow should be struck. Our weapon shall be the mightiest judicial sword of all, the Constitution.
The United States Constitution contains (in Article I, Section 8) the foundation for the patent system (emphasis mine):
The Congress shall have Power […] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
Patent trolls are typically not inventors. They are merely hoarders of other people’s discarded inventions, and that allowing others to reap the benefits of an inventor’s work would somehow promote progress should be a tough argument. Indeed, it is the dissociation between investment and reward which has allowed the patent trolls to rise and prosper.
In light of the above, the solution to the troll menace is actually strikingly simple: make patents non-transferable.
Having the inventor retain the rights to his or her inventions (works for hire still being recognised), would render the establishment of non-practising entities, which most trolls are, virtually impossible. The original purpose of patents, to protect the investment of inventors, would remain unaffected, if not strengthened, by such a change.
First of all, I’d object against the use of word “troll”. Those noble creatures living under the bridge has nothing to do with the scum from the bottom of the river. May I suggest word “racketeer” for a change?
Second, have you ever thought why patent racketeers are common in USA but not in the rest of Europe? The differences in patent law of course, and those differences can give you the answer how to deal with those patent extortionist. I don’t remember those details but I think the main difference was that the patent needed to be exercised, i.e. if you don’t use it (not just simply paying renovation fees) it can be invalidated. It would be really nice to have that in automated form — i.e. if the owner cannot prove he used that invention for a given period of time in the past the patent becomes invalid. Another thing was different treating of prior art for patent eligibility (i.e. how the fact that someone has _used_ some thing before, especially if it has been done abroad, affects the process of issuing patent or not).
And I fear your proposed solution can’t work. It’s impossible to forbid transferring such rights (i.e. you cannot sell patent but an exclusive license would work as well; actually in Ukraine they tried to forbid driving car if you don’t own it but have a written permit from the owner — guess how it ended).
I was actually saving some thoughts along the same lines about validity for another post.