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In this issue:
Patent Trolls and Patent Trolling
At http://en.wikipedia.org/wiki/Patent_troll, Wikipedia tells us that “patent troll,” is a pejorative term used for a person or a company that enforces its patents against one or more alleged infringers in a matter considered unduly aggressive or opportunistic. However, we would like to take this opportunity to reprint this essay by Eugene Quinn, Patent Attorney and Moderator of PLI – Patent Blog, which originally appeared in said Blog on June 21, 2007, which we feel provides a broader and more realistic interpretation of patent trolling. We herewith extend our appreciation to Mr. Quinn for allowing us to reprint this document.
Patent Trolls and Patent Trolling
by Eugene Quinn
I recently stumbled across a Slashdot post titled “Location-Based Search Was Patented In 1999.” Being the skeptic that I am when it comes to others accurately reporting patent news, I decided to investigate a little deeper. It does seem that an British investment company, YelloOne, is the owner through assignment of U.S. Patent No. 5,930,474, and that patent does indeed cover a system which associates on-line information with geographic areas. Furthermore, YelloOne did sue Verizon in a complaint filed November 15, 2006, in the United States Federal District Court for the Eastern District of Texas, Marshall Division, alleging that Verizon knowingly, intentionally and willfully infringed the ’474 Patent by, among other things, using and providing websites such as www.superpages.com.
With respect to the patent itself, the ‘474 patent was filed on January 31, 1996, and ultimately issued on July 27, 1999. Given the length of time between issuance of the patent and the filing of the lawsuit against Verizon this case seems to have been brought by what have become commonly known as “patent trolls.” I personally have absolutely no problem with so-called “patent trolls.”
*Reprinted with Permission of author
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How could anyone who understands patent law? So-called “patent trolls”, of course, get their bad reputation by merely having the foresight to acquire intellectual property assets that are being infringed. The same opportunity exists for any company or individual, provided you can both afford to purchase a patent and fund (or acquire funding for) patent litigation. The reason patent trolls get such bad press is that their activities seem less than pure, although they are indeed exercising pure capitalism. The problem I have with speaking negatively of patent trolls is due to several factors. First, how can we reasonably define what a “patent troll” is and, thereby single out the bad from the good? Second, how could anyone get upset by another who exercises rights given by the federal government? With respect to the first issue, “patent trolls” are considered to be those who simply seek to license or litigate. But isn’t that exactly what Microsoft is currently trying to do with their patent portfolio? You never hear Microsoft called a “patent troll”, although their open-source strategy is definitely called many things. Furthermore, there have been a whole host of companies throughout the modern era of patents that have derived a significant portion of their income from licensing activities. Are these corporate giants “patent trolls”? What about companies that patent everything, whether or not the invention is in their area of industry? They seek to license or sell such rights. Are these companies “patent trolls”? Where is the line? With respect to the second issue, can anyone explain to me why those who exercise their rights under the law should be criticized? For better or worse the US patent laws provide certain rights to the owners of a patent. How can we then be upset when an owner of the patent actually exercises the right? Railing against “patent trolls” seems ridiculous to me, and smacks of hypocrisy. What corporate giant wouldn’t vigorously defend their patent portfolio? All of this really begs the essential question raised by “patent trolls” though. It seems to me that what is offensive is the acquisition and enforcement of patent rights that the patent community perceives to cover obvious inventions. In this case, I must admit that it is exceptionally difficult to understand how a patent could issue to cover geographical searching using the Internet. I am mindful that back in 1996, when the patent was filed, it was a different era for Internet technologies. Nevertheless, it seems that this patent, and a whole host of other business-method-type patents merely take an existing, real-world model and add new technology to make it happen. The trouble I have with a lot of these types of patents is not surrounding patentable subject matter, but whether the fact that the Internet, which newly allows for certain telecommunications functionality, should as a matter of fact turn every business method into something that is patentable simply because it can now be accomplished via the world wide web. Perhaps all of this worry about these types of business method patents is much ado about nothing. As most who are reading are probably well aware, the Supreme Court's recent ruling in Microsoft Corp. v. AT&T Corp. has substantially curbed the geographical reach of software and business method patents. In this case the Supreme Court simply held that Microsoft was not liable for patent infringement under 35 USC § 271(f) because the version of Windows that was actually installed on the foreign-based computers was not exported by Microsoft. So simply ship the master disk outside the united states for installing and there will be no infringement, at least when used outside the United States. But after this decision is it possible that the Supreme Court could at the next opportunity think to revise the Federal Circuit expansive application of US patent law to find infringement in the Blackberry case even though certain steps of infringement clearly occurred outside the United States? The issue of extraterritoriality and the enforceability of suspect business method patents by so-called “patent trolls” should make for some interesting cases to come.