[IP] more on Patent reform in Congress
Begin forwarded message:
From: Jason Schultz <jason@xxxxxxx>
Date: May 16, 2005 12:25:02 PM EDT
To: info@xxxxxxxxxx
Cc: dave@xxxxxxxxxx
Subject: Re: [IP] Patent reform in Congress
Rob,
You've hit the nail right on the head. Defining patent "trolls" is
not as simple as saying its any entity that didn't invent or doesn't
commercialize a product, just like defining spam and spyware are
difficult out-of-context. The key to defining trolls appropriately
is within step #3 on your list -- the reason you did not
commercialize it yourself. For some inventors in some industries,
e.g., semiconductor manufacturing or biotech, it is nearly impossible
for anyone without billions in capitalization to effectively
commercialize inventions. However, in other industries, e.g. e-
commerce or various forms of software engineering, it is much
easier. The vast majority of troll complaints come from the latter
and not the former. Thus, the key is context -- why did the inventor
assign the patent to the alleged troll? Was it because they were
understandably unable to commercialize it? Or was it because there
was no commercial market for it but rather (because of broad claims
and the cost of litigation) a market for leveraging large settlements
out of companies, both large and small.
These distinction are important because patents are not supposed to
be universally fungible commodities like a car or a house or even a
piece of real estate, where any sale for profit is considered a good
sale. Rather, patents are government grants that are meant to be
given only when they serve the public interes, i.e. they are only
supposed to subsist as a tool to help promote actual innovation and
commercialization of technology. If a company buys a patent that
never contributed to any such innovation or development, then it is
against the public interest to allow that patent to be unfairly
exploited via litigation. On the other hand, if the patent did make
such a contribution, the inventor is owed some compensation. Drawing
that fine line has proven to be a tricky task, but it is nonetheless
an important distinction to bear in mind when determining who's a
troll and who's a talented innovator.
Jason Schultz
Staff Attorney
Electronic Frontier Foundation
On May 16, 2005, at 6:55 AM, David Farber wrote:
Begin forwarded message:
From: Rob Raisch <info@xxxxxxxxxx>
Date: May 15, 2005 6:24:37 PM EDT
To: dave@xxxxxxxxxx
Subject: Re: [IP] Patent reform in Congress
Ok, I'm slow about these kinds of things, so let me get this right...
1. I invent something useful,
2. I patent it (which gives me the right to exploit my invention
for a period of time), and
3. I then sell that right to someone else because for whatever
reason I am unable to commercialize it myself.
So, the new patent-holder finds an infringer and decides to protect
their newly purchased property rights? And that's a "troll"?
Sounds like the infringer has been amazingly lazy, not done the
requisite IP homework, and has made money off of an idea they do
not own and had no rights to exploit.
What am I missing?
/rr
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Jason M. Schultz (415) 436-9333 x 112
Staff Attorney jason@xxxxxxx
Electronic Frontier Foundation www.eff.org
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