Slashdot Mirror
Battling the Patent Trolls
opus writes "There's an interesting series of
articles at law.com on the current situation in patent law, which has become "a money-minting machine for a few patent holders". Includes an article on Peter Detkin, counsel at Intel, who spends much of his time battling patent infringement claims against Intel, and who coined the term "patent troll". Apparently it's not just the geeks who are unhappy with the current state of affairs in patent law."
Did you see the 60 minutes the other night? It was about bio-tech companies patenting genes. Someone DISCOVERED the genes related to breast cancer and patented them. Later on two researchers where doing studies related to breast cancer and got a letter from some lawyers. They had to stop doing research as they were infringing on the patents!
As with all legal areas involving technology, if we as technology professionals do not make our voices heard, as the group most immediately and directly impacted by actions like this, then we have no one but ourselves to blame.
As for the sections of the article dealing with "abuses" by the infamous Jerome Lemelson (I'll let you search yourself if you are not familiar with him and his patent portfolio) and his "submarine patents," the particular aspect of patent law that allowed him to file applications, let them lie dormant for years while industries sprung up, then have new patents issue covering already established practices, the article is merely proagating more FUD. The law has changed and it is no longer possible to do this. In fact, the rule now is that applications are now published 18 months after filing - even before issuance.
Finally, ask yourself: If you worked hard and invented something, wouldn't you want to benefit from it instead of having someone with more resources steal it and sweep you under the rug? Patents provide that benefit. A good patent lawyer is the inventor's best friend because he will make sure the inventor is protected to the maximum extent permitted. And despite popular opinion, the PTO statistics say that fewer than 3% of all patents issued make money for the inventor, so getting a patent is not an instant win in the lottery.
Laws affecting technology will always be bad until enough techies become lawyers.
How did a system that was supposed to encourage innovation turn into a moneymaking machine for bottom-feeders?
Two factors loom large: 1) the creation of the Federal Circuit 2) ballooning impact of special interest money in politics
The Federal Circuit was created to handle trademark and patent law. Other Circuits do not play a role anymore. If you have a patent issue in your case, it will detour to the Federal Circuit. Because "IP specialists" fill the Federal Circuit, the Supreme Court is hesitant to review their precedents. Basically a single point of failure has been created, and bad decisions do not go through the peer reveiw process at the Circuit level. On a normal issue, if the 3rd cirucit does something weird, the 4th isn't bound by it and if they create conflicting precedents, the Supreme Court will often examine the issue a third time. The other problem with the Federal Circuit is that it makes the process more susceptible to infiltration. Heavy lobbying behind the scenes can get a judge favorable to a special interest in. Since there are fewer judges deciding the issues (only one Circuit) the effect of this is much more profound.
The second reason affects everything in government. It's the surgeing influence of special interest money in Congress. A few key players who make money in the patent arena can agressively voice their views with big checks attached and they will be listened to. Small players have a lot more difficulty. This blocks reform and influences key position choices in the PTO and in the Courts, as above.