“The patent troll narrative has distracted Congress and the courts from seeing how it protects incumbency for our nation’s most dominant big caps by diluting investability in new technology that might one day unseat them.”
The first 100 days of the Trump Administration have now come and gone. So far, they have not revealed much more than the obvious fact that there is a significant disconnect between President Trump’s 4 year re-election objectives and the 2 year re-election timetable of House Republicans. Retaining their seats is job one for both. The President believes that will require Republicans to enact legislation on the issues central to the President’s campaign and the party Platform; issues Republicans have been complaining about over the past eight years.
The mismatched re-election priorities of Republicans can be expected to continue roiling Capitol Hill throughout the remainder of 2017 and likely into 2018. With healthcare and tax reform likely to take up much of the summer oxygen in Washington, DC, and into the fall of 2017 when insurance premium hikes will be announced again, what, if any, signature Republican issues will be addressed remains in significant doubt.
With small ball policy left far behind by both inter-party and intra-party politics, what will the current state of Congressional legislative enactment capacity mean for patent reform? An argument could be made that so much energy will be placed elsewhere that matters of peripheral importance in the greater scheme – like patent reform – will receive no attention. But intellectual property generally and patent policy more specifically tends to be an apolitical issue where ideologues on both sides of the aisle can reach agreement. Without knowing how the cards will fall, and given that those who perpetually seek patent reform are once again working the halls of the Capitol, prudence suggests that those with a pro-patent vision remain ever vigilant.
Last week IPWatchdog.com explained why eBay, Mayo and the creation of the Patent Trial and Appeal Board to hear post-grant challenges to patents were the three most significant legal causes of today’s patent crisis. The common thread that led to each “event” was a brilliant anti-patent strategy that converted policy maker apathy towards patents and our nation’s innovation ecosystem into a belief that simply stopping a few bad actors by passing comprehensive patent litigation reform would solve any ills.
The patent troll narrative has worked well. Indeed, at a recent hearing of the Senate Judiciary Committee Senator Dick Durbin (D-IL) quipped: “Whoever came up with that phrase should get a special bonus because they manage to mischaracterize anyone who goes to court to assert patent rights as a troll…”
The beauty of the patent troll narrative was it took little time to absorb and instantly painted a pejorative picture in the minds-eye of the listener. It became easy to repeat. Its bumper-sticker simplicity led to widespread usage, which ultimately (and quickly) became accepted as fact without much, if any, critical thought. Most important, the strategy by-passed the arcane complexity of its convoluted subject matter by shifting the burden of Congressional persuasion to its victimized and under-resourced opponents. Politically outmatched from the start – inventors and innovators had, up until this point in our history, always been held in high esteem were overwhelmed. That suddenly changed with the patent troll narrative and inventors became persona non grata, even viewed as evil and villainous. Indeed patent reform’s innate obscurity was its most important ally. Few knew more than the patent troll narrative, so as it was often repeated people unfamiliar with patents on even the most basic level became horrified by the myth the narrative painted.
Over the next 100 days, patent reform’s obscurity may become the enemy of patent reform instead of its ally. After all, if the public isn’t interested in patent reform why should President Trump spend time on the issue? Moreover its proud parent, “efficient infringement,” has now become the enemy of Trump’s conservative, property-devoted base. Patents are property rights as has been recognized by the U.S. Supreme Court for over 100 years and as stated explicitly in the Patent Act. Nevertheless, the patent troll narrative has returned to Capitol Hill. Even with more pro-property right, security-conscious, conservative allies than in previous cycles patent reform opponents, who 500 days ago rallied loudly enough to make HR 9 too controversial for pre-campaign enactment, must rise again.
Expect big tech and its leftist bed-fellows to exert more effort to “de-propertize” patents on Capitol Hill and in the courts. Expect to hear that every patent holder who protects her lawfully established exclusivity by responding to efficient infringement in courts to be called “ambulance chasers.” Expect proponents of reform to mischaracterize patent reform as a step towards tort-reform, which is nearly comical given that the tortfeasor in the equation is the party that is trampling on the property rights of patent holders through infringement, which is many times purposeful and willful. Expect lobbyists for Main Street retailers to again be flattered by attention from big shot Silicon Valley lobbyists and support their latest version of the anti-patent, anti-property right patent troll narrative. Expect new academic junk science and more speculation by professorial patent policy “experts.” Expect the USPTO to praise the PTAB’s star-chambered repression of so-called “bad patents.” Expect efficient infringement to continue while the courts and Congress are asked to dither over patent trolls.
We must explain the truth to those who understandably drank the patent troll Kool Aid and believed that Silicon Valley’s tears for Main Street retailers were real. Efficient infringement’s cheaper, faster, better economics compel its continued deployment. The patent troll narrative has distracted Congress and the courts from seeing how it protects incumbency for our nation’s most dominant big caps by diluting investability in new technology that might one day unseat them. The patent troll narrative’s flaw is that the repressive litigation it supports applies not to a few remaining patent abusers but to ALL patent holders, especially startups who produce the most jobs.
The efficient infringement narrative is no more complicated than the troll narrative. The patent troll narrative just reached the Hill first, which means the story of efficient infringers trampling patent property rights, though perfectly true, has a tougher road given it must not only gain its own traction but it has to undo the damage caused by the misleading patent troll narrative.
To be re-elected Congress may need to focus on less obscure issues this year than patent reform. But if party leaders choose to consider patent reform the bill will be driven by the patent troll narrative, not its content. Pro-patent Senator Chris Coons (D-DE) has wisely reminded us that Congress likes to learn through stories. Patent reform’s proponents will again bypass content explanations by repeating the patent troll narrative. Pro-patent opponents can respond with their own efficient infringement narrative. Let proponents then explain the contents of any bill in simple, easy to understand terms. Let us work to put a face on efficient infringement, which has ruined so many inventors who have seen Silicon Valley giants make so many millions of dollars infringing patents after taking technology originally invented by individuals and small start-up businesses who never had a chance.
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9 comments so far.
staffMay 16, 2017 11:21 am
‘Whoever came up with that phrase should get a special bonus’
They have -legalized theft of their small competitors leaving nothing but bare floors. When thieves win America loses.
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Night WriterMay 4, 2017 02:30 pm
Top Campaign and PAC contributions (that we know of):
EGMay 3, 2017 04:30 pm
EFF must be part of the “fake media” that Trump always talks about, eh?
AnonMay 3, 2017 03:19 pm
“just mad he infringed and got caught.”
Sounds like the erstwhile Mr. Snyder…
Night WriterMay 3, 2017 03:08 pm
Paul MorinvilleMay 3, 2017 02:09 pm
JNG, The Hill article is written by the CEO’s of two phone apps sold through the Google Store, an important point, and a photography company. These are the same three companies who are always complaining. Capstone Photograph and Xplane and Laminar. Although they do not name their companies in the article, they are the three main companies the EFF parades out to talk about the “damage” of infringing on someone else’s property.
Here’s Eric: https://www.linkedin.com/in/eric-rosebrock-82477023/ His company (http://appcrawlr.com/ios/music-roadmaps) is patent pending and he was a speaker for EFF before he founded his company.
Austin Mayer is this guy: http://www.thepatentscam.com/a-lawsuit.html If you listen to his explanations, he is just mad he infringed and got caught.
I looked up the capstone guy a few years ago. He received a demand letter and Eff got involved pushing his story.
When I was going to Town halls in Iowa, there were enough Iowans asking questions about patents that Grassley forced Engine to find Iowa companies who were damaged by “patent trolls.” Engine hired one of the largest law firms in Des Moines to identify companies and they mistakenly contacted me for help. Shortly thereafter, Grassley let the PATENT Act die in committee. He let it die because they could not find any companies damaged by patent trolls. None in Iowa.
These three folks are vomited up by EFF whenever they want to push the narrative. There are virtually no companies truly damaged. It is fiction constructed by people like these guys.
JNGMay 3, 2017 12:58 pm
The big serial infringers, aided and abetted by faux public servants like EFF, are serving up a steady diet of horrible tales to poison Congress. Here is a perfect example:
Two of these three “sob stories” were sued by competitors who held IP on fundamental aspects of their business. They never bothered checking, I’m certain, to see if their model might be using someone else’s IP.
Uniloc is a regular enforcer of IP, but guess what? They also made products in the early 90s, and have never been found to enforce any patent frivolously. Unlike the infringers, Uniloc’s rights are protected: they are entitled under the Constitution to seek compensation for unauthorized infringements. Their case was dismissed based on adverse IPR results, but you will note Meyers and crew never made any suggestion or effort to argue Uniloc’s behavior was improper, or ask for their legal fees. Meyers has used this sob story to drum up support, sympathy and sales, he’s a boy crying wolf if there ever was one.
AnonMay 3, 2017 10:21 am
While the narrative of this post is well woven, methinks that the “opposition” will simply answer this as they answered the question put forth by Mr. Durbin.
That is, they will provide no answers.
Or even worse, answers that are non-answers (as was supplied to Mr. Katznelson, who pursued a legal answer through his own painstaking efforts, only to end up with nothing more than platitudes).
I can guarantee one thing here: instead of (actual) answers, we will merely see more propaganda from those seeking to weaken patent rights.
The shameful thing is that the propaganda may continue to work on the “trifecta” of where I would put the blame for the current state of patent law.
Night WriterMay 3, 2017 09:54 am
As I said the Google bucks will push year after year to weaken patents. Look at who funded the campaigns of some of the people in the article–Google.