The History of the Patent Troll

An anonymous reader writes: Patent trolling is not a new problem, although recently it seems that the issue has captured the attention of a broader audience. Four years ago, NPR produced an episode of This American Life called "When Patents Attack!" And, four months ago, John Oliver devoted the bulk of his time on Last Week Tonight to raising awareness about patent trolls. "Most of these companies don't produce anything—they just shake down anyone who does, so calling them trolls is a little misleading—at least trolls actually do something, they control bridge access for goats and ask fun riddles," he explained. " Patent trolls just threaten to sue the living s*** out of people, and believe me, those lawsuits add up." In an article on Opensource.com, Red Hat patent litigation defender David Perry takes a look back at the history of patent trolling, as well as some possible solutions to the problem.

Comments

Those who can, do.

[Opportunist]

Those who can't, sue.

Use it or lose it

[Anonymous Coward]

Use it or lose it. Sounds a good solution to separate trolls from inventors.

If they can't make the thing work themselves, then have they really solved the problem or just wrote a document with a claimed solution that does not work in the real world? Its easy enough to look around at whats happening in a market (e.g. self driving cars) and write a bunch of paper patents around that on "stopping a self driving car on detection of a barrier", "easy mechanism for switching to manual control on a self driving car".... you might think 'apply brakes' and 'button' are not inventive, but is single click ordering button inventive?

Plus you get a physical thing, to compare against previous real existing things, no longer can you re-interpret the vague lawyer wording in a document, there is an actual thing to be examined.

An invention is an INVENTION not a description of an invention written by lawyers on paper. It's a thing not the description of the thing. The law should reflect that.

Re:Use it or lose it

[bws111]

Bullshit. Engineering and manufacturing are not the same thing as inventing. There are many, many inventors who invent actual useful things without being involved with manufacturing at all. Universities come to mind.

Re:Use it or lose it

[drinkypoo]

Use it or lose it. Sounds a good solution to separate trolls from inventors.

Our current system permits patent licensing, do you propose to do away with that, or will you make an exception for licensed patents?

If they can't make the thing work themselves, then have they really solved the problem or just wrote a document with a claimed solution that does not work in the real world?

That's a separate problem, patents whose claims are insufficiently specific should be rejected. So long as that is true (which it isn't, now) then you will have your answer; if the solution doesn't work, then a troll won't be able to use it to troll an invention which does because they won't be the same. But if you permit broad patents with generalized claims to be used against specific inventions which fill in all the blanks in the original patent application, then the system permits pure trolling.

Personally, I think patents are a crock, and we should get rid of them completely. Maybe phase them out over time, but that just leaves too many opportunities to stop the clock, rewind it, etc. They probably made sense once. If they make sense at all today, their duration should be much shorter.

Re:It just shows another weakness

[Imrik]

They don't do nothing, it's a lot of work figuring out which patents you own and finding people who may have violated them. Just because what they do is detrimental to society doesn't mean they aren't working hard.

Patent Granted

[Anonymous Coward]

My idea is to "[unoriginal concept that has been around forever]... but, using a computer."

PATENT GRANTED.

My idea is "[vague, non-specific concept]... using a networked computer."

PATENT GRANTED.

My idea "doesn't have an implementation or actually exist nor is it something that I can actually develop, but it is new and uses a computer."

PATENT GRANTED.

My idea is "something that has been used for decades on computers. I didn't invent it or develop it, but no one patented it, so..."

PATENT GRANTED.

Re:IBM started this trend

[ruir]

Did it? I have heard interesting stories about Edison being a patent troll.

Patent Trolls are a legitimate use of the system

[trout007]

The problem is that of the whole concept of Intellectual Monopolies not Patent Trolls. Patents and Copyrights infringe upon the concept of property rights. The whole reason we have the concept of property rights is to determine who has the best claim over a scarce resource. It pretty much follows the pre-school rule of "I was here first". If a kid picks up a stick in the school yard nobody is using and pretends it's a wizard wand everyone knows that it's wrong to go up and take that stick from her. Now if she abandons it then it's fine for someone else to pick it up to play but there may be a conflict where she claims she just put it down for a second. She can also voluntarily give it or trade it to someone else. Other kids can also pick up unused sticks and pretend they are wands as well. Patents and copyrights are akin to the first kid going around and threatening to punch people if anyone else pretends a stick is a wand. Even if someone owned a stick before the person pretended it was a wand.

The Economist says "Time to fix patents"

[ACorrosionOfDeviants]

Here's what The Economist had to say last week about patents and patent reform (August 8 2015):

"Today's patent systems have created a parasitic ecology of trolls who aim to block innovation"
http://www.economist.com/news/...

"Patents are protected by governments because they are held to promote innovation. But there is plenty of evidence that they do not."
http://www.economist.com/node/...

It's a well-researched and thoughtful position.

The Patent Combine

[Anonymous Coward]

"Libertarians" (the ones who are glossing over the fact that they are totally ok with the government stepping in to protect their inventions) love to point to the Sewing Machine Patent Combine a century ago, where three people pooled together their patents and made an organization to bill everyone making sewing machines and split the money between themselves.

That worked great when there were three people splitting a buck fifty three ways, but these days, every single patent holder thinks their patent is worth 5% or more of the gross revenue of every company, and there are hundreds of thousands of them, many of them patents on shit like "using this encryption algorithm I didn't invent, on a network I didn't invent, in software i didn't invent that was designed specifically to do this thing I'm claiming to do in the patent" like the "RC4 on the internet" patent that just got struck down.

A true software patent combine would have to convince these people that they should join their pool and go from collecting 5% of the gross revenue from everyone themselves, to 0.000001% of some fee or percentage collected by the pool. Inevitably, people have tried and failed, the bonus for defecting in this prisoner's dilemma is massive (how many millions did Rambus make until they were finally taken down?)... and those were actual practicing companies with something to lose. The "Non-Practicing Entities" have nothing to gain from joining such a combine, since it needs no protection from the other members, and consequently nothing to lose from not participating in the combine.

Trolls aren't the main problem

[ciaran2014]

In software, more problems come from non-trolls.

* Microsoft getting royalties from hundreds of millions of smartphones that contain no Microsoft software (and we're lucky they're currently only asking for royalties - they have an equal right to simply tell others to stop developing!)

* IBM getting 1,200 patents on cloud computing

* Nokia and other companies with failing software divisions sitting on a mountain of software patents

* Video formats being covered by 1,000+ patents of telecoms, software companies, hardware companies...

* Facebook patenting social services, as if competing with their dominant position wasn't hard enough

Trolls are a real problem, but the topic is also used to draw people's attention away from the bigger problems created by software companies with big patent portfolios.

Re:Trolls aren't the main problem

[Rob Y.]

The only software patents available should be on actual inventions. The kind of stuff that when described, elicit a response of 'that would be cool - if it could be done', not 'that would be cool - I think I'll go and do it'. That distinction defines non-obviousness. Just because there aren't that many ideas that can't be implemented in software through obvious, well-known approaches doesn't mean that the obvious stuff must be granted patents. If software has opened up a realm of activity where implementation of new ideas no longer requires new inventions, so be it. No need to redefine invention downward just so the PO can keep granting patents and patent lawyers can keep raking in the dough...

Re:Trolls aren't the main problem

[ciaran2014]

That's not the problem either. Besides the practical problems of defining "actual inventions" or on subjectively interpreting whether an application meets this standard, a small number of software patents is almost as bad as a very large number.

Imagine we raise the obviousness bar so high that 90% of software patents get invalidated. The Mpeg video formats would be covered by 100 patents instead of 1000. What does that change? Nothing.

Microsoft has, IIRC, 300 patents is uses when shaking down distributors of smartphones. If that was cut to 30, would anything change?

For new formats, even if Microsoft had only one single software patent that they knew was valid, they can design their format in a way that requires it.

The problem isn't lax evaluations, it's that patents don't work in a domain where development can be cheap, distribution can be free, both can be done by average people, and compatibility is so important (with the implied tendency to foster monopolies).

Re:Trolls aren't the main problem

[drinkypoo]

Microsoft has, IIRC, 300 patents is uses when shaking down distributors of smartphones. If that was cut to 30, would anything change?

Yes. That's a whole order of magnitude less work to be done to fight them, and so a whole order of magnitude less dollars to spend. It absolutely makes a significant difference.

Re:Trolls aren't the main problem

[ciaran2014]

That's not how it works. Fighting patents isn't a question of "work". If a patent is valid, and it's necessary for what you're doing, then you're screwed. You can't just throw "work" at the problem.

If you're faced with one to five patents, and you think they're invalid or you think you don't infringe them, *then* it's a question of work (and crossing you're fingers you don't get unlucky with the judge/jury). 30 patents? The 30 which are more "legit" than the 270 we already discarded? Forget it.

Re:Trolls aren't the main problem

[stackOVFL]

You can't just throw "work" at the problem.

I really need you to come talk to my boss.

Re:Trolls aren't the main problem

[sjames]

A strong clue should be re-invention. If the second party re-invents the patent (not by reading the patent or examining an implementation of it), they should be at worst considered co-inventors, not infringers. If multiple others re-invent a thing, then it was simply obvious in the first place and no patent should have issued.

We also need to actually enforce that a patent is a reduction to practice, not the idea itself. Send a message over the network that someone else can read later is an idea. SMTP is a reduction to practice. However, tell any competent software engineer that you want to send messages to other people that they can read later and you'll get some variation on a store and forward network protocol that will inevitably resemble SMTP (but would likely differ in details), so no patent.

Further, actually enforce the requirements for the disclosure. No more filtering through a lawyer that produces a patent that most competent professionals wouldn't recognize as matching up with the actual invention. It MUST be possible for a professional with average skills in the profession to actually reproduce the patented item using only existing knowledge and the patent documents.

Re:Trolls aren't the main problem

[sjames]

It's the invalid and questionable patents that create expense and work. If you have to get 300 patents found to be invalid, it takes a lot of time, work, and money to make it happen. If you have 30 that you must kill off, it takes a lot less.

Even if there's a genuine legitimate patent in that haystack, it helps a lot if you can find it and act accordingly.

Re:Trolls aren't the main problem

[ciaran2014]

> It's the invalid and questionable patents that create expense and work.

On the contrary, those are the easiest ones. At least you've a chance against those ones. It's the clearly valid ones that will kill your project.

> Even if there's a genuine legitimate patent in that haystack,
> it helps a lot if you can find it and act accordingly.

This is the same myth as above: that "appropriate action" (or "sufficient work") can solve patent problems. Fact is, if the patented idea is necessary for your project, and it's a "genuine legitimate patent", then you're at the mercy of the patent holder.

("Necessary" can be absolute, such as the need to read a certain file format, or it can be a practical matter such as an inconvenience or a 20% speed decrease which would cause a sufficient loss of customers to make your business unprofitable.)

Maybe you can pay them. Maybe. But a lot of software is distributed in ways which aren't compatible with paying the usual per-copy fees. Not just free software, but also freemium models and software which is developed as a byproduct of the person doing their real job. Even if they do give you a payment option that works for you, you don't know if they'll still be offering this option next year.

Maybe they don't want to be paid. They could prefer being the only company that can do this job.

The "act accordingly" options available are pretty lousy, and it's out of your hands.

Re:Trolls aren't the main problem

[sjames]

The act accordingly case may well be a killer. But it will happen a lot less often and be more apparent when it is the case if we could get rid of the chaff.

For example, take MP3. Act accordingly might mean don't release before x date (which is not that long from now) but all the chaff makes it unclear when X is.

It may also be that once all the chaff is removed from the pile, there is no wheat at all and the correct thing is move forward with confidence. But if you first have to run 300 patents by a lawyer who may or may not be able to give you a direct answer, that is a lot of WORK.

Getting rid of the chaff isn't the only necessary change, but it would be an improvement.

Re:Trolls aren't the main problem

[ciaran2014]

Ok, granted, abolishing 90% of software patents based on quality would improve some things, but it's the least efficient way to fix the system. We'd be fools to aim for this.

If you've ten fields with ten land in mines each, the worst way to clear 90% of them would be to remove nine from each field. The optimum way is to completely rid nine fields of mines.

Raising quality is equivalent to removing 90% but leaving a mine in each field. The equivalent to the optimum situation is: exclude certain domains from patentability. Imagine being able to say "My software has to play videos, and I know reading, writing, and transmitting videos can't infringe patents, so I'm good". That's what we need. Even going 20% in this direction would be better than going 90% in the quality direction.

(An example of this working in other domains is: writing a novel. No author ever has to thank his lucky stars that he only has to face 30 patents.)

Discussion of trolls and quality is a bad use of time. Both have been hot topics for more than a decade, and the problem has only been getting worse.

The upside of patent holding

[goombah99]

Someone who holds patents without producing anything for the purpose of extracting royalties is not a patent troll.

Patent trolls are bad. These are people who exaggerate their patent's originality and breadth to practice extortion-- extortion usually comes in the form or asking for money at a sufficiently small sum compared to what the company might risk losing if it pressed the case.

but holding companies that don't act like patent trolls are hugely valuable. For example, consider the company PDLI. it holds biomedical patents and it's most profitable patent is "Queen et al", which is a general method for humanizing antibodies (that is what lets you take antibodies developed outside of humans and turn them into drugs suited for humans). The people who developed the patent were lab researchers who have no ability or interest in making commerical scale drugs. That's why we have drug companies. They sell the patent to PDLI for assured income, and PDLI takes on the risk of marketing the patent. Drug companies use the patented process to make and sell comerical drugs. The researcher's are not waiting around for the drug companies to have success to get paid. Thus everyone in the food chain here is doing exactly what they are good at doing. The patents would not be in such widespread use without PDLI stepping up to arbitrage the risk and make the market for the patent work.

Arbitragers are good.

Patents are valuable to society becuase comapnies will often not invest the time and effort into refining a method of production if they can't be protected from upstarts. Thus technology and science enter the commercial arena more quickly when patent protection lets a company take the investment risk. THat is, by liscencing a patent either exclusively or one with a high price their is a strong barrier to competition from upstarts. At the right level of exclusivity or price this actually enhances the use of the technology not diminishes it by exclusion. An logically, the patent holder sets the terms where they get the most money which comes from the most valued use of the invention. SO society benefits.

Thus there's a huge difference between extortionists with bad patents wield as war clubs against companies not able to defend themselves and non-producing patent holders which are hugely beneficial to society.

using the phrase non-producing patent holder as the definition of a patent troll is wildly inaccurate and misleading

The suits are taking notice

[halsathome]

Financial newspaper Economist also did a large piece on patents recently. They have backed down on their original stance of abolishing patents altogether (from 200 years ago, when patent law was enacted), but they still come out pretty clearly on how patents may be stifling innovation.

Re:The suits are taking notice

[PPH]

Yes. The suits are taking notice.

They have backed down on their original stance of abolishing patents altogether

Probably because some of their largest advertisers depend heavily on collateralising intellectual property. And they made a few calls to the publisher's management.

Re:The suits are taking notice

[halsathome]

I think even the Economist will not have hubris to try turning the clock back 200 years, at least not in one swoop. I don't think it would take any pressure. Like ACorrosionOfDeviants says, the articles seem pretty well thought out. Considering the prevailing attitudes towards "IP", the position the Economist takes is actually pretty radical.

Re:IBM started this trend

[drinkypoo]

Did it? I have heard interesting stories about Edison being a patent troll.

Edison licensed a lot of patents, but they were for working inventions, and people produced them. Is there some record of Edison being particularly litigious? I'm no fan of Edison, but let's hate him for all the right reasons :)

Re:IBM started this trend

[jonwil]

Edison used his patents on motion picture cameras to control the film industry though litigation. In fact, his lawsuits forced many many film producers who didn't like Edison (or couldn't get a patent license from Edison) to move away to places like California (where it was harder for Edison to sue them and where the judges were less friendly to patent holders)

So yes he WAS very litigious. But no, he wasn't really a patent troll in that he actually produced many of the things he invented and patented.

Re:IBM started this trend

[ruir]

He patented many things invented by others and his employees, including Tesla.

Re:IBM started this trend

[ruir]

Often patenting things that he only slightly improved. (example, the lightbulb is not his invention, only an improvement)