> Oh, come on. It's been a decade since the patent holder was in a strong position.
the sharp rise of patent trolls in the last decade would like a word with you
the sharp rise of patent trolls in the last decade would like a word with you
If the function of patents is to incentive capital markets to invest in products and processes that otherwise wouldn't see any investment because of the lack of a profit motive, then patent trolls are a good thing. The whole point of a patent is to grant a monopoly. Whether a patent holder enforcing the monopoly is a non-practicing entity (NPE) is immaterial.
Indeed, by the logic of the patent system so-called trolls are an unmitigated positive. They add liquidity to the patent system. Liquidity means the patent system, theoretically, is more efficient at incentivizing research and design.
If you have a problem with patent trolls, then it means you have a problem with something _else_ fundamental to the patent system. Maybe if you followed your beliefs to their logical end, you would question the validity of the necessity of patents. Alternatively, maybe what so-called patent trolls are exposing is the fact that patents are too freely granted, or granted for too long. Or that being able to sell patents at all, whether to NPEs or other companies, is just an end-run around anti-trust laws, which would otherwise blunt how rigidly a company could leverage patent rights in a market.
In any event, there's nothing negative about patent trolls, per se. They're simply exposing fundamental flaws in the patent system. I fear that focusing on so-called patent trolls will simply result in superficial legislative and judicial solutions.
A patent troll is not just a "non-practicing entity" - it's an organization that attempts to use a granted patent to charge tolls on a range of later invention which was neither enabled by nor anticipated by the patent.
There should be absolutely no incentive nor mechanism for patent holders to block and extract tolls from inventions they did not enable.
It's perfectly fine for a bridge builder to authorize someone else to charge tolls (a non-practicing entity), but it is unacceptable for an unrelated party (troll) to set up camp charging tolls on a bridge, just because they had an idea for a similar bridge somewhere else.
IOW, the term is purely rhetorical, like pro-life/pro-choice, right-to-work, etc.
Stopping so-called patent trolls could be done with real, substantive change, or it could be done superficially by rejiggering the rules so the system is less susceptible to easy criticism. That is, you can clamp down on patent trolls (i.e. high-profile abusers), without actually changing how easily patents are granted or the scope of what they encompass. And without changing the fundamental balance of power in the high-tech economy between small upstarts and large, established players.
In reality, for young companies patent trolls are an imaginary boogeyman. A patent troll won't sue until you're actually successful. "Legitimate" patent holders are going to kill you in your crib. As an entrepreneur I'm far more concerned with the latter than the former.
It behooves large corporations to keep the focus on so-called patent trolls.
For the idea that patent trolls add liquidity to the invention marketplace, I'm under the impression that the cost of acquiring the patent in question is often only a minor component of the operation, and the major cost is litigating it. Which seems to suggest that the primary economic effect is something else (what that is I'm not sure).
I think part of the problem with NPEs is that in practice there is a natural disincentive for large companies to sue over (possibly) frivolous patents, since they generally each have large patent arsenals and can countersue causing a loss to both companies. So there is an incentive to have some degree of restraint except in particularly egregious cases, and for total patent wars not to go on forever. NPEs obviously don't have this incentive, and it's not clear to me how a change in patent law could effectively replicate it.
The phrase you are looking for is administrative overhead. Which suggests that obtaining "liquidity" via patent trolling is highly inefficient and should be discouraged, because the bulk of the money is going to overhead and not incentive for innovation.
(Indeed, it's comments like these that give me pause when thinking about votes in moderation systems)
All they want is a credible threat and easy prey - a patent that will hold up in court long enough to bankrupt their victims, who lack the resources to fight back, and will therefore settle.
Fighting this variety of patent troll requires acknowledging that patents have (unintended) uses other than "incentivizing capital markets to invest in products and processes that otherwise wouldn't see any investment because of the lack of a profit motive".
Even legitimate and narrowly drafted (but inapplicable to the defendant) patents can be abused in this way, because the process of responding to a patent infringement claim is expensive.
There are many flaws that should be fixed in how patents are granted, but patent trolls rely on one serious flaw in how patents are litigated: the median cost to defend against an infringement claim is $1 million.
The patent system is a left over from monarchial rule and should be abolished.
~80% of programmers don't think software patents make sense. Did you see the design patents at issue here? It's literally rounded edges and a grid-like UI for apps.
>then the term patent troll is basically just an epithet meant for rhetorical effect.
The term came about due to corporate lawyers taking issue with using the term "extortionists".
> They're simply exposing fundamental flaws in the patent system. I fear that focusing on so-called patent trolls will simply result in superficial legislative and judicial solutions.
Agreed, we should settle for nothing less than ending patents on software, especially when the cost of reproduction is nil.
Mathematics is not patentable either, and there are many "significantly new" innovations there.
The position of whether software should be patentable depends mostly if you think of it like math, or like pharmaceuticals. The former requires mostly just a lot of thinking, and very little money. The latter requires massive quantities of cash, expensive equipment, trials, lawyers, etc.
A large number of software patents don't even require a lot of thinking- the majority of the work goes into writing the patent, rather than the creating the system to be patented.
Short patents on truly new software inventions could be overall a benefit to the software industry. But the crappy ones are unquestionably a significant drag.
() The big problem we have had, particularly as regards software patents, is that it has been much too easy to get one. They need to be restricted to actual technological advances, and not just cases where changes in the landscape enable applications that are novel but obvious, like sending document scans over email. (A document scan is digital data; email is a transmission medium; sending data over a medium has been done since the telegraph.)
() It's not at all clear that the existence of NPEs per se is a problem. As long as we allow patent rights to be sold at all -- and I don't really see how we could prevent it; any rules we came up with could be gamed -- I don't see how we could prevent their sale to NPEs. And then, the fact that an entity is non-practicing doesn't seem to me to justify denying it its rights.
() "I fear that focusing on so-called patent trolls will simply result in superficial legislative and judicial solutions." -- I share this concern to some extent.
However, I don't entirely dismiss the patent troll problem either. I think the rules around patent litigation have made it too easy for NPEs, armed with low-quality patents, to shake down innocent businesses. There's just not enough risk to filing an infringement suit in bad faith. I think judges have to be empowered to fine plaintiffs for abusing the system, at least to the point of requiring them to pay the reasonable attorney's fees of the defendant if the suit is unsuccessful. It would have to be at the judge's discretion, as we don't want to discourage independent inventors from filing legitimate infringement suits against large companies. Specific evidence of abusive litigation would have to be present, such as:
() Suing end users of a product, who are much less able to defend themselves than the manufacturer.
() Inability to provide specific evidence of actual infringement: to say exactly what the defendant has done that infringed what claims of the patent.
() Forum shopping.
() The patent is invalidated on review.