Five recent articles challenge anti-IP myths driven by tech cos. Does the business media have the courage to follow?
For decades patent enforcement has been depicted as the province of villains and cheats. Drawing this portrait are either those who don’t understand the patent system, or who stand to lose because the system is doing its job.
Their effort to re-frame the story is more about an attempt to mitigate exposure than to fix the patent system. Myths about patent “trolls” destroying the economy and impeding innovation have been spread and patent enforcement demonized. All the while, poor patent quality and IP theft by bad actors — the real story — have grown.
Why a broad range of patent holders and their advisers have taken it on the chin for so long is a mystery.
It may have to do with licensing businesses who believe they hold quality patents and act honorably to protect their rights and those of their partners. They do not feel compelled to speak up because they are not the ones promoting the so-called frivolous suits.
Well, the ease of dumping on the patent holders who enforce their rights or others’ may be starting to wane. In recent weeks no fewer than five articles were published addressing the potential consequences of anti-enforcement legislation stoked by reluctant licensees and defendants.
Collectively, these articles suggest that more care must be exercised about who calls whom a “bad actor,” or of deploying “junk “patents.
Don’t Ignore the Evaders
In a USA Today pieces, “Don’t Weaken Intellectual Property Rights,” former Senator Jon Kyl (R-AZ) said, “There are ways to address litigation abuse without putting the strength of our intellectual property rights in peril.”
In IP Today, Berkeley Professor David Teece, an eminent authority on patent value, cautioned about the rhetoric in “Stop the Grandstanding on Patent Trolls.”
“Opponents of trolls seem to assume that patents only have value if they are held by companies that make products that use the invention,” Professor Teece stated. “But the real problem is frivolous litigation [and poor patent quality], regardless of a company’s business model.”
In a really first-rate piece by InterDigital CEO, William Merritt, “Address the Patent Trolls but Don’t Ignore the Patent Evaders,” he points out that invention theft is a more heinous crime than the number of questionable suits that are filed annually.
Also recently, the ever reliable Gene Quinn at IP Watchdog published, “Patent Haters Take Notice! University Innovation Fuels Robust Economic Activity.“ In it, Quinn enumerates the tangible financial benefits of university technology licensing, including the reported $2.6 billion in licensing income generated from university patents in 2012.
Quinn, a patent attorney, is familiar with the patent stonewall facilitated by some Silicon Valley companies whose franchises may be threatened by disruptive ideas. They would prefer audiences believe only they (successful tech businesses) are in the position to define what is innovative. (Detroit. This sound familiar?)
“At present patents and innovators are under attack by some Silicon Valley tech giants, the White House and members of Congress who are more interested in grandstanding than seeking meaningful legislative proposals that are likely to address litigation abuse,” he writes.
“Indeed, some Silicon Valley tech giants are not particularly fond of innovating and only begrudgingly use the patent system. Of course, these same companies will erroneously claim they are innovators, but by definition innovation means doing something new, not copying what others have done and ignoring their patent rights. These folks who think innovation is making a product rather than introducing something NEW, see patents as a necessary evil.
“This is extraordinarily short-sighted, but they have deep pockets for lobbying and getting their point of view in front of decision-makers.”
Separating Fact from Fiction
Finally, Steve Moore, an IP attorney with Kelley Drye in Stamford wrote in the fifth of a five-part series debunking the myth of patent trolls, A Fractured Fairy Tale: Separating Fact & Fiction on Patent Trolls, that vested interests are promoting and inaccurate picture of patent enforcement that could potentially undermine U.S. leadership in innovation.
“Our study suggests there is a critical need for a very through, unbiased, look at the so-called ‘troll problem’ before new legislative and administrative fixes are enacted. In particular, a careful analysis of any ‘fix’ must be made to determine the effect of any proposed change on the majority of companies in this country, that is the small company.”
To read more about the debunking of patent troll myths see Moore’s Probing 10 Patent Troll Myths.
A Glut of Legislation
Five articles do not make a movement. Still, if you looked around a year ago there was practically no one writing about the need to reign in so-called patent reform, or expose the finger-pointers for doing little more than protecting their own interests. With seven patent bills in Congress in various stages of evolution, most associated with heavy lobbying by the anti-enforcement proponents, the atmosphere is beginning to resemble something of a witch hunt for which the broomstick has yet to materialize.
The focus of the patent discussion needs to be on the real issues: patent quality and bad actors.
Image source: postplanner.com; washingtonpost.com