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Archive for the ‘Patent Reform’ Category

It’s assumed in the blog world that IV is evil and that Nathan M. is public troll #1. I keep wondering in the back of my mind, what if he is up to good rather than no good.

Everybody agrees that there are serious kinks in the patent laws and that the USPTO is backlogged until Moshiach comes. 😉 There IS a hole in the system regarding people being able to enforce patents they did not invent. This is one of the big holes IV is exploiting.

The thought is — what if they’re trying to gather enough political clout to force a change in the law? What if as the biggest potential troll in the world, they are able to eradicate all other trolls from the patent system? What if they are trying to bring justice to the system (in a socialistic kind of way which I don’t quite understand or support) by bringing huge companies down to their knees?

There is a lot of money behind those patent conglomerate companies, and they’re obviously doing what they do for some reason. G-d knows they own enough patents to cripple the patent litigation system forever with valid (not frivolous) lawsuits should they choose to. It would take a flick of a pen and we could say goodbye to the system as we know it.

How’s that for an apocalyptic view of the patent litigation system and those who hold the true power of it? 😉

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I was reading this morning’s post on the Patently-O Patent Law Blog about the Biomedical Patent Management Corp. (BPMC) v. California Department of Health Services (on petition for certiorari) brief by the Solicitor General.

In short, I feel that the Court is spending too much time looking for the perfect case to justify the ruling (a.k.a. law) they are looking to implement. However, I believe that injustice is being done because bad law is being pushed on the lower courts because the Court is not hearing these poorly-decided cases. I feel this is bad practice, and I implore the courts to stop this practice. Their job at their level is not to “legislate from the bench,” but to resolve issues where the lower courts have made errors. My comments to the Patently-O article is below:

TJ, I think the problem is that the SG is looking to pick and choose the best cases to create the law they’re looking to implement. Metabolite v. Labcorp was a good candidate to take on the “thinking step” patentability issue, but nothing significant happened, thus no material change to the patent law system. Now, we have a case where the Cali gov’t is enforcing their patents, but hiding under 11th Amendment immunities. Again, the SG claimed this was not the right case to create this kind of law, noting that the issue is really a problem. I can think of a few more examples of this off the top of my head.

Pardon the baseball analogy, but it’s unfortunate that the courts are looking for a slow pitch down the middle to assert the law they wish to implement. Perfect cases only come once in a while, and we are racking up issues that need to be addressed, and the courts keep going silent. This is not justice — not for the litigants, not for the patent law system, and not for the country. Stop looking for the perfect cases, and make the wronged litigants whole by hearing cases where there has been an injustice done at the lower courts, because by being SILENT, you are creating precedent and BAD LAW. Just stop it.

The Court needs to put a stop to looking for the “perfect” cases so that they can “legislate from the bench” and must return to adjudicating cases to right a wrong when the lower courts have gone awry.


Robert Z. Cashman is a patent litigation attorney / patent attorney in Houston, TX.  He has started an informative website using the name Cashman IP which will be a resource for those who wish to obtain a patent or for those who would like to find out how to prevent companies from stealing their inventions. Services include help with entering into IP Agreements & Licensing options, IP Enforcement and Litigation, and Strategic Counseling.

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I was thinking about Zusha Elinson’s “New Business Targeting Patent Trolls Signs IBM and Cisco” article in which he discusses how RPX Corp appears to have the business model of aggregating patent assets (likely relevant to their members) “off the street” so that patent trolls cannot get to the assets first and enforce them against their members. Additionally, the article discusses how the company is buying NOT to enforce their patents against their members.

The issue here is two-fold: 1) whether RPX can control itself regarding costs to its own members and not become a mafia-type of organization extorting funds from corporations who have the choice of “join or be sued,” and 2) what RPX will do to companies who choose NOT to join their organization.

As per the question of whether RPX can control itself internally, I see from looking at Wall Street that companies do not and can not control themselves when there is opportunity to get away with an abuse. It reminds me of the old “moral versus legal” discussion I used to have in law school about whether one should be permitted to do something immoral and wrong even though it is not illegal, and whether all immoral activities should be illegal (obviously the answer is no — when there too much control, wrongdoers surface and look to find loopholes in the system, and the question becomes only whether something is legal versus whether it is moral.) With the over-regulation and under-enforcement by the federal regulators, my opinion is that there are few controls and risks for companies who violate laws and it is simply too costly to enforce the laws against those companies breaking them. Thus, people do what they can to make a profit and their conscience has no part in the equation. My opinion about this issue is that government must cut down on the regulations and must stop over-regulating, but MUST significantly increase their enforcement of rules that are on the books.

Similarly with regard to RPX’s activities towards companies that choose not to be part of their posse, the danger is that a for-profit organization has a profit motive, and often the ability to grow profits will overtake ethical considerations such as fairness and morality, as discussed above. A company infringing a patent soon-to-be-owned by RPX obviously should either 1) take a license, or 2) get sued for patent infringement. However, my question is more about questionable bullying practices which are likely to occur as soon as a for-profit organization has muscle.

I have read on the web about some questionable litigation tactics where abuses of the legal system force a company take licenses when they are not necessarily infringing the patents being asserted against them. The reason here is that the cost of litigation ends up being HIGHER than settling and taking a license to the assets even though the company is not infringing them. This is a serious abuse and is something that should be addressed in the form of legislation and/or regulation.


Robert Z. Cashman is a patent litigation attorney / a patent attorney in Houston, TX. He started an informative website using the name Patent Prophet which will be a resource for those who wish to obtain a patent or for those who would like to find out how to prevent companies from stealing their inventions. Services will include help with entering into IP Agreements & Licensing options, IP Enforcement and Litigation, Strategic Counseling, and much more.

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As I was writing this comment (below) to the “New patent aggregator RPX may have an Oedipal complex” article by Matt Asay, I got chills down my back. You know I’m all for business and profits, but I am also for innovation and the furtherance of technology. If for no other reason, I got into patent law to help be a part of the future, as I believe that technology can solve the world’s problems… it can also cause and aggravate them. When you have patent holding companies that are so big and who wield so much POWER and CONTROL over those who have patents in subject matters which fall within their line-of-sight, it stuns me how quickly these conglomerates could kill businesses by “patenting past” their technologies.

Okay, first of all, very cute analogy to Oedipus. You even got a chuckle out of me. Secondly, a business model such as theirs IS something to be feared, but ALSO in an awe-stricken kind of way. Companies who cheated inventors out of licenses that rightfully should have gone to the inventors have created trolls and troll conglomerates. Obviously patent reform will somehow address this issue because corporations are shaking in their pants when a conglomerate such as this one or its family knocks on the door. Perhaps they’ll eventually have to hang on to the same patent law they threw under the bus when they decided to infringe in the first place. I equate a conglomerate to the Angel of Death (AoD). If one is virtuous (e.g. if a company stays within their protected rights covered by their patents and rightfully takes licenses to those inventors whose patents they are practicing), then that company will get a pass and they won’t have to submit to the will of the AoD.

What scares me is not the acquisition of patent rights from inventors who have been cheated out of licenses that rightfully belong to them, but think tanks of scientists who patent “just to stay ahead of technology.” Now that is frightening, because a company with enough resources can rule the world if they speculate and patent each and every speculation. This appears to be exactly what is happening, and from a corporate perspective, it is HIGHLY profitable.

That being said, I am sure that once patent conglomerates begin to stifle business’ ability to grow because they have to pay the keeper to cross the bridge — the true meaning of a troll — then at that point if not before, government will have to step in to preserve the patent system and restore it so that patents are returned to being used to further innovation rather than to stifle productivity.

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A paste of a comment from another TechDirt article on “New Patent Buying Firm Swears It’ll Never Litigate Over Its Patents

Comment – Nov 25th, 2008 @ 1:27pm
I agree. The goal of the whole patent process is to INNOVATE and to protect the INVENTOR against others reverse engineering and copying his/her ideas. Perhaps the problem is allowing patents to be transferable.

Obviously I don’t have a solution, but the patent law system is obviously broken at the point where inventors no longer can enforce their patents and are forced to sell to larger companies (often called trolls) who have the muscle to enforce. Maybe in addition to giving inventors more protections to enforce their patents, preventing the purchase and sale of patents in itself is also a solution. I know a solution like that would upset a lot of people, but at least it would protect the integrity of the patent system.

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Another paste of a comment from the TechDirt article on “New Patent Buying Firm Swears It’ll Never Litigate Over Its Patents

Re: Mafia – Nov 25th, 2008 @ 1:29pm
There is no reason that those looking for patent protection have to pay the equivalent of a mafia in order to have protection from would-be infringers. The laws themselves should provide enough patent protection to the inventors, but they don’t in their current form.

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I thought the conversation in the comments section of the Techdirt article about Bill Gates working with Nathan Myhrvold was a good one. I wanted to paste a copy here.

Peter,

I agree that forums such as these are good for voicing concerns about those who are benefiting from the patent law system in its present form. However, it does nobody any good until someone on the federal level *who has legislative power* gets interested in the subject matter and takes action on it. My experience is that this almost never happens until people like YOU, ME, and OTHERS start writing letters, sending e-mails, and making phone calls.

Those in power need to be EDUCATED on the issues we are discussing on this mini-forum, but they will likely not come to you or read this article and its many comments. HENCE, WE NEED TO BE PROACTIVE AND DO SOMETHING about issues we see that affect the integrity of our patent system.

Someone below referred to me as a “self-labeled troll.” I find that comment to be slightly ignorant. Rather, I’m an activist and I prefer to fix the problems at its source rather than fighting those who have figured out a way to benefit from the system as it is. While I am very against those who abuse the system with frivolous law suits, patent assertions, and litigation tactics, ESPECIALLY from NPEs (non-practicing entities), ***always remember that there would be no such thing as a patent troll if companies would be fair about taking licenses from little guys (individual inventors and/or small companies who cannot afford the patent enforcement process.)***

My opinion is that there should be stronger patent protection for inventors so that there would be no incentive to sell to a troll for pennies on the dollar.

As for the topic of NPEs, I don’t quite have a solution, nor do I know what to do about them, but I do see it as being an issue.

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