Time for total war on patent trolls

Writing in The New Yorker, Tim Wu calls for "total war on patent trolls" and lays out a roadmap for attacking the extortionists who are costing the US economy a reported $30B/year by extorting license fees for patents that never should have been issued and don't cover what the patent trolls say they cover.

There are good laws in place that could fight trolls, but they sit largely unused. First are the consumer-protection laws, which bar “unfair or deceptive acts and practices.” Some patent trolls, to better coerce settlement, purposely misrepresent matters such as the strength of their patents, the extent of other settlements, and their actual willingness to litigate. Second, there are plenty of remedies available under the unfair-competition laws. Some trolls work by aggregating an enormous number of patents, and then present the threat that one of their thousands of patents might actually be valid. The creation of these portfolios for trolling may be “agreements in restraint of trade” under Section 1 of the Sherman Antitrust Act, or they may “substantially lessen competition” under the Clayton Antitrust Act. More generally, the methods of the trolls are hardly what you would call ordinary methods of competition; they should be considered, rather, what the Federal Trade Commission calls “unfair methods of competition” under Section 5 of the F.T.C. Act. The Commission has the power to define and punish methods of business that are inherently harmful with few or no redeeming benefits, and that’s what trolling is. Finally, it is possible that the criminal laws barring larceny and schemes to defraud may cover the conduct of some trolls.

How to Make War on Patent Trolls


    1. I like Beowulf’s solution to trolls; tear their arms off & beat them with the bloody stumps until they run to their mommies.

  1. Just today, a few hours ago, a web-comics-guy I follow on Twitter was asking about patent lawyers, because someone patented a long-established technique for presenting web comics.

    He was being proactive, assuming the worst, but as things are set up today, he likely has cause to worry.

    * * *
    The sudden high profile of patent trolls and their outrages is gratifying. I’d been following the issue for years, thanks to Cory and the Planet Money investigation. Now, the president is railing against the practice. It makes me wonder if he listened to This American Life last weekend and got as ticked as I did when I heard it . . .

  2. I hate to belabor the obvious, but the author of this article is pro-patent, and the motivation behind the idea of total war on trolls is essentially to protect the patent system as it exists today by getting rid of some of the more visible and obviously bad abuses.

    It would actually be a bad outcome to use the laws the author proposes we use to fight patent trolls, because it would leave much of the harm caused by the patent system untouched, removing only the harm that has finally allowed the question of whether patents are good to come into the public eye.

    Following the strategy laid out in this article would lead to a pyrrhic victory for the people, and a big win for Big Patent.

    1. It may be obvious, but we won’t survive unless we eventually start fixing the obvious problems. The US economy is drowning in a sea of bad patents. These proposals do nothing to address the problem. They are attempts to create a lifeboat where a few privileged souls might escape..

      Real patent reform looks straightforward, if we could ever amass the political capital to admit the obvious mistakes. But, how do you reform in the face of  determined opposition by the powerful patent industry?

      I tried to enumerate the most important of those mistakes and some proposed fixes at: https://plus.google.com/b/101806809558932714222/101806809558932714222/about

      I think those mistakes may be:

      1) Believing that patents guarantee progress and innovation. Modern patents are simply grounds to sue an industry. More patents = more lawsuits.

      2) Running the US Patent Office as a cost-recovery operation is a mistake. We thought changing to cost recovery would save a few bucks. Instead, it changed the whole focus from serving the country to collecting patent fees.

      3) It is a mistake to organize the US Patent Office to create economic incentives to grant poor patents. Currently most of the revenue of the US Patent Office comes from GRANTING patents. See the USPTO FY 2013 President’s Budget page 37: http://www.uspto.gov/about/stratplan/budget/fy13pbr.pdf “..More than half of all patent fee collections are from issue and maintenance fees, which essentially subsidize examination activities.”

      This means that, regardless of merit, a large percentage of all patent applications must be granted in order to fund the US Patent Office. This economy creates unavoidable pressure to grant many patents that should not otherwise be considered.

      A recent study by the Richmond School of Law found that the US PTO’s actual grant rate is currently running at about 89%. In 2001, it was as high as 99%. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2225781 page 9. In 2001, it didn’t matter if an application was over broad, obvious, trivial, a duplicate, or unreasonable, they ALL got granted. Things haven’t improved much since then.

      4) Scaling up the Patent Office to produce more poor quality patents is a mistake. Currently, we expand the number of patent examiners based on demand. See the USPTO FY 2013 President’s Budget, page 60, Gap Assessment: “Meeting this commitment assumes efficiency improvements brought about by reengineering many USPTO management and operational processes (e.g., the patent examination process) and systems, and hiring about 3,000 patent examiners in the two-year period FY 2012 and FY 2013 (including examiners for Three-Track Examination).”

      Again, the assumption is, more patents are better, even if it means decreasing examination, and increasing the number of untrained examiners. Poor quality is an inevitable result of this patent process.

      5) It is a mistake to grant all patents that meet minimum standards. A review of the last couple decades changes in the patent approval criteria will reveal that the minimum standard for granting a patent has consistently shifted downwards. We must abandon the idea that any patent that meets minimum standards is granted. Over time, the standard always degrades.

      I have no idea how to survive the current flood of poor patents. But, sooner or later we need to stop the flood.

      1. Sounds good, but surely this bit is overstated:

         The US economy is drowning in a sea of bad patents. 

        To the extent that it’s drowning, I think numerous other factors are much bigger causes.

        1.  You are right. There are so many drags on the economy:  Outsourcing; Tax disincentives; Inequalities of all sorts. After a while, it is easy to look at what is left and think that a single effect could be a critical blow.

          Plus, a flood is just not the right metaphor for the patent problem. Flood implies a natural origin. The patent mess is entirely artificial and self imposed.

          What would be more apt? Lets see.. At the start, the country was warned of the dangerous consequences of patent monopolies. We experimented with a little. The country became adapted to patents. We wanted more and more. Now, we can’t stop, even though it is hurting us.

          This is a classic addiction pattern. So a better start to that post would probably be:

          The US economy is addicted to patents. At first, we indulged in a few, choice patents. Then more, and more. Now, we have no control. We will patent anything, more than once. These proposals do nothing to address the underlying problem. They are attempts to mitigate a few symptoms for a few privileged souls..

          Thanks for the advice. I’ll update my reference page.

  3. I don’t advise violence, or feel it is ever an answer. But this article made me think of this event: http://99percentinvisible.org/episode46vulcanitedentures

    (tldr: dentist shoots patent troll who starts trolling a process of making dentures that helps thousands)

  4. Hmmm, a total war on patent trolls which means we will soon be up to our behinds in patent trolls as they come out of the woodwork to defend their allies.  Can we appoint a Patent Troll Czar and allocate billions to winning this war of patent trolls?  We can raise taxes on poor people and it will be an excuse to lower taxes on the rich.  Isn’t that how these things work out nowadays?

  5. About time.  This has been going on for decades. There’s even a building at MIT funded by (and named for) one of the most egregious and successful patent trolls of all time. Apparently, his family is still at it…suing away on the basis of his vapor and flimsy paperwork.

  6. “Total war” has a bad history.  In particular, it was a crucial term during the rise of National Socialism.  I would suggest a different phrase, particular since this one seems to have distracted some people from real patent reform.

    1. Yeah… in Paradise Lost, I’m pretty sure that was the phrase Lucifer used, “My sentence is for total war”.  Rallying the troops for his war against heaven.  That didn’t turn out so well, IIRC.

      Edit: Google says it was Moloch’s line, not Lucifer’s. My bad. It’s been 20 years or so.

  7. Is there a patent on the process of buying up patents and extorting money?  Let’s troll the trolls!

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