In a recent interview with IPWatchdog, Congressman Thomas Massie (R-KY) explained that every day Congress is in session there are lobbyists on Capitol Hill seeking to weaken the patent system. Massie’s words were both accurate and prophetic. On Monday, July 10th, eight tech companies owning a collective 115,000 patents announced the establishment of the High Tech Inventors Alliance (HTIA), an organization they claim is “dedicated to supporting balanced patent policy.” According to coverage by Congressional blog TheHill, the formation of the HTIA is intended to further debate on Capitol Hill over patent reform.
The members of the alliance are your typical “Who’s Who” of the efficient infringer lobby. This would include Amazon.com (NASDAQ:AMZN), a company that lobbied for H.R.9, the Innovation Act, eight times during the 114th Congress (2015-16) according to data published online by OpenSecrets.org. Most of those actions were focused on copyright and music licensing issues, but at least one lobbying report includes patent litigation reform as an issue which Amazon lobbied. Amazon’s lobby efforts on that bill are tied for the second-most actions it had taken on any bill that year. Amazon’s work on the Innovation Act pales in comparison, however, to Intel’s efforts. Intel Corp. (NASDAQ:INTC) filed 22 lobbying reports on the Innovation Act in 2016 and 20 the year before. That makes it the second-most active single lobbying entity on the Innovation Act behind the Pharmaceutical Research and Manufacturers of America (PhRMA). At least one of Intel’s lobbying reports from 2016 notes lobbying on issues related to patent trolls for H.R.9. Third-place among entities lobbying for the Innovation Act is Dell, another member of the HTIA. Alphabet Inc. (NASDAQ:GOOGL), the parent company of fellow HTIA member Google, filed 17 lobbying reports related to the Innovation Act in 2016 and another 15 in 2015. Multiple Google lobbying reports mention patent trolls. Every member of the HTIA, including Adobe (NASDAQ:ADBE), Cisco (NASDAQ:CSCO), Oracle (NYSE:ORCL) and Salesforce.com (NYSE:CRM) all lobbied on issues related to the Innovation Act.
It would be far too generous to say that all of these companies making up the HTIA are truly interested in promoting balanced patent reform that achieves successful results for every player in the U.S. patent system, especially the smaller entities who keep getting squeezed by Congressional misaction, executive branch mismanagement and a judicially-myopic U.S. Supreme Court. The press release announcing the HTIA notes that, collectively, its members invested $62.9 billion on research and development in 2016 and they employ 447,000 people in the United States. But they’re promoting legislation which only tips the scales further away from patent owners and to entrenched interests who would be able to rely on mandatory fee-shifting and involuntary joinder statutes, among other things, as further risks to capital investment in smaller players, further discouraging legitimate patent infringement suits from reaching district court.
The only members of the HTIA who lobbied on S.632, the STRONG Patents Act, were Amazon, Dell and Intel. One of the lobbying reports filed on behalf of Amazon notes that Amazon lobbied the STRONG Patents Act to raise the issue of the Federal Trade Commission’s recent report on patent assertion entities (PAEs). It is very telling that all members of the HTIA lobbied on a patent reform bill that would disproportionately hurt smaller entities while only a fraction of them interacted with a different bill which would have strengthened patent rights while increasing the crackdown on abusive demand letters. It’s even more telling that Amazon lobbied the STRONG Patents Act to raise issues related to the FTC’s PAE study, a study with questionable methodology reaching overbroad policy conclusions.
We can probably expect more of the same anti-patent “patent troll” rhetoric from the HTIA given that its members have so fervently worked on behalf of the efficient infringer lobby in recent years. There are already blog posts online touting the group’s nascent efforts in the fight against patent trolls.
“When the patent system does not function well, it undermines rather than supports innovation, to the detriment of all Americans – inventors, employees, investors in productive businesses and ultimately, consumers,” said John Thorne, the HTIA’s general counsel and spokesperson. Thorne couldn’t be more right: a poorly functioning U.S. patent system, currently ranked 10th by the U.S. Chamber of Commerce in its most recent IP index, harms the ability of innovators to protect their intellectual property and results in venture capital flowing into other markets like China.
It has to be discouraging, if not outright infuriating, to most patent owners that any sensible discussion on the U.S. patent system in D.C. has been relegated to the basement of the U.S. Capitol. Especially when the halls of the House of Representatives echo with the false narrative of “patent trolls”, a false narrative being reinforced by blatantly anti-patent and uneducated viewpoints being paraded by poor panel witnesses. Anyone who cares about the state of justice in the U.S. patent system ought to closely scrutinize the activities of the HTIA when it lobbies on behalf of patent reform on Capitol Hill.
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27 comments so far.
staffJuly 21, 2017 12:19 pm
as we said…
Silicon Valley InventorJuly 19, 2017 04:31 pm
Another tangent…@Angry #24, “remember those Google glasses?” Google Glass is not a good example. It was not invented by Google, which simply purchased Microoptical Corp. and the device is useful (in enterprise) as today’s news indicates. https://techcrunch.com/2017/07/19/google-glass-never-really-left/
Tesia ThomasJuly 18, 2017 01:47 pm
Just searched “who invented the multiple water balloon filler”?
Josh came up. 🙂
angry dudeJuly 18, 2017 01:25 pm
Edison was running invention sweatshop (much like google or apple today:
one success out of 100 efforts to come up with new and useful tech – remember those google glasses ?)
Tesla could come up with brilliant inventions in his head
Today Tesla would be a patent troll without good legal representation
Probably would die much sooner…
Tesia ThomasJuly 18, 2017 12:36 pm
Edison- rich, greedy business man (Google et all efficient infringers)
Tesla- gifted, genius inventor (you, me, Josh et all poor inventors)
The more we get inventors to this narrative the better the laws might be.
People sympathize with Tesla and spit on Edison. It’s public perception.
Tesia ThomasJuly 18, 2017 12:26 pm
It’s kind of like the Tesla and Edison fight.
People regard Edison as a thief and Tesla as a genius even though it’s not totally true
Tesia ThomasJuly 18, 2017 12:24 pm
But what mean is history will know Josh made the balloons. So Walmart and whoever can’t take the credit.
angry dudeJuly 18, 2017 12:10 pm
“The software overlords might crush you but at least you might be able to introduce your tech as your creation”
No they won’t be able to, at least not for quite a while, if you can keep it more or less a trade secret
even simple compilation of obfuscated C code into exe binary is a huge obstacle to copy cats – they can crack the code and use it in their own products (thus committing criminal copyright infringement) but can’t reverse-engineer the underlying functionality without huge labor expenses
And if you use binary encryption the expense will be several times higher
only the biggest crooks out there (like google or apple) will attempt to do it
and even then it will be much quicker and cheaper for them just to buy the whole thing
But I decided to go patent route back in 2001… huge huge mistake
How things have changed…
Unfortunately zipper is not compiled software and can be immediately replicated by any manufacturer
Sorry, but you are just a collateral damage in this fight about hi-tech software/hardware patents
I think you should try to tell those crooked politicians the (perhaps unintended) consequences of their efforts to demolish hi-tech patents
You (and that water balloon inventor from another thread) are poster child of collateral damage
Tesia ThomasJuly 18, 2017 11:42 am
I think we can attack and defeat all of these losers with public perception.
It might take a while but if govt is really stacked against us then it’s our only hope.
You’ve got to reach the people that pay them and not the people they pay.
Likewise, the people that vote for the legislature and not the people that bribe them once they’re in office.
Tesia ThomasJuly 18, 2017 11:37 am
The purpose is to eventually weaken public perception about them.
You have the tech first before the IP publishes. You have 18 months to get that around. Even better if you can get reporters to write about you.
It all becomes a reference.
When they attack you, you can just say, “Jealous losers pfft. They hate they couldn’t think of [bubble sort/the tech name]”
That’s what I’m doing. It’s my Don’t Die ALL THE WAY strategy. lol
People are starting to associate ‘silly young woman + bunny’ with ‘cool new zipper.’
Tesia ThomasJuly 18, 2017 11:33 am
I think all software inventors should implement, use, and publish their patented concepts. Then, name that tech something.
And, then archive all of it.
The software overlords might crush you but at least you might be able to introduce your tech as your creation.
Like “bubble sort.” Name your software your name + whatever it is. It might get around before Google kills you in PTAB.
Tesia ThomasJuly 18, 2017 11:25 am
Yeah and I realize my most probable fate. But, I’m a fighter. I’m at least going to make sure it is known YKK, IDEAL, etc did NOT invent the new, improved zipper tech!
They can take the tech, obliterate the patents but I’m just trying to make sure I get the credit.
Prior art is forever.
angry dudeJuly 18, 2017 10:52 am
Eric [email protected]
“The same “brilliance”, that delayed, suppressed the marketing of, and eventually wasted ISDN; by the Bell operating companies which had this remote digital networking technology tested and ready some ten years before the Internet. A ‘brilliance’ driving the gluttonous demands for further destruction of the U.S. patent system.”
As far as I remember, 56K modem (not ISDN) became de-facto standard in late 90s, and it was invented and patented by independent inventor who was beating the sh1t out of those willful patent infringers in courts for a while…
Then corporate those crooks regrouped and changed patent system to what it is today (with full assistance from congress and scotus critters and obama folks)
The final straw I believe was NTP vs RIM
Ebay followed shortly, using non-technical ecommerce patent to thoroughly screw tech inventors (and the rest of inventors as a collateral damage – water balloons and zippers included)
shame, shame, shame
Tesia ThomasJuly 18, 2017 10:28 am
Maybe it’s that they’d bankrupt each other.
It’s easier to bankrupt a company with tens of millions (a successful startup) than another Goliath with many billions.
Goliath v. Goliath…ehhh nah. They could damage each other so much that they’d shrink and that’s not what they’d want.
Imagine how long billionaires could drag out a lawsuit. Forever (nearly)
angry dudeJuly 18, 2017 10:18 am
What is really disgusting is that those big monster tech corps sue each other all the time for patent infringement, usually resulting in cross-licensing deals
But when an outside small party (e.g. independent inventor or small startup) sues one of those monsters, they all gang up on that little person/company trying to squash him out of existence by all means, spending colossal sums of money – many times more than it would cost them to buy a patent or the entire startup
This is a lot like drug cartel – any outsider trying to enter their business will be murdered
I have my personal stories to tell about those crooks and they are horrible
shame, shame, shame
Tesia ThomasJuly 17, 2017 10:19 am
Yeah HTIA sounds like collusion to me.
It’s interesting how Apple, Google, Cisco, etc can gang up on the small inventor but hardly IPR each other.
Aren’t they all making software? If they’re all infringing the same small player enough to PTAB gang up on the person then I’d say there’s enough overlap for them to infringe each other.
Why aren’t they taking each other to PTAB?
Tesia ThomasJuly 17, 2017 10:16 am
I never said they were *always* out innovated. I just meant they are, whether sometimes or often, they are out innovated.
The patent system was meant to foster competition for the benefit of society.
Eric BerendJuly 17, 2017 06:19 am
These mendacious paladins of IP theft are seeking to establish a ‘deep freeze’ on technological innovation similar to that which dominated the automobile industry for many decades.
WTH??!! …was everyone’s brains turned off for 70 years, that an eight-cylinder ICE couldn’t possibly be made to improve by even a mere 3-4 MPG?? Then, when hybrid drive vehicles appear, produced by NON-U.S. auto makers, of course – ‘SUDDENLY’, the ‘Big 3’ each have models that can achieve some 30+ MPG! Astonishing! What brilliance!!
The same “brilliance”, that delayed, suppressed the marketing of, and eventually wasted ISDN; by the Bell operating companies which had this remote digital networking technology tested and ready some ten years before the Internet. A ‘brilliance’ driving the gluttonous demands for further destruction of the U.S. patent system.
TernaryJuly 17, 2017 12:02 am
In many cases companies are probably right to be annoyed. Not all inventions are good or brilliant or even usable.
And companies are not always out-innovated. I have done much patent work for large companies and they do outstanding and impressive inventions. But the numbers and the chances of an outsider doing a good invention are just against them. And with that the chance that an inventor will get a patent that will be asserted against them is not negligible. But that is the system and that is the way that new companies will be created. So live with it, I would tell existing companies and HTIA. You still have a tremendous advantage over independent inventors and start-ups.
However, do not destroy the patent system for relatively minor benefits (mainly noise in your operations). This is one High Tech Inventor Alliance (HTIA) that I as a high tech inventor am against. In fact HTIA’s interest are opposite to and damaging to my interests as an independent high tech inventor.
Tesia ThomasJuly 16, 2017 07:35 pm
I think you’re completely correct that we’re annoying to the big players.
One of the most commonly used arguments (insults) by Department of Defense and its contractors are that,
“This inventor doesn’t have degrees or experience in this field. We have spent billions on R&D and our guys have PhDs. So, if we couldn’t do it [with all the time and money] then this nobody couldn’t do it!”
If you ask any inventor who’s been to court against the government, you’ll see that the government used that argument somewhere. They say this and swear that the inventor’s tech doesn’t work.
I did have to develop my idea to a patent app in a very short time (months) because as soon as I submitted to SBIR A16-062, DoD was looking to take it without giving me any money.
They asked for the tech and didn’t fund the grant proposal.
I would go even further as to speculate on the origin of this animosity toward us as being the haughtiness that comes from the well-educated and the people in big, cushy corporate jobs.
They think they’re better than us and can’t stand when we ‘outdo’ them, especially with limited resources.
It all boils down to credentialism, jealousy, ageism…
Independent inventors are independent. This is nearly an attack on the type of people that flock to big companies.
Just look at Jeff Bezos. He literally had to have a phoenix rebirth after imagining what he’d feel like on his death bed, transform to having a new perspective, and finally quit his cushy job to become a starving startup founder.
You know when I soft-launched (put up a website) last year what my largest competitors did?
I soft-launched as public disclosure on July 1, 2016.
August 4, 2016…one month later…
VP of IDEAL Fastener Corp. contacted me. 2nd largest zip manufacturer in USA.
September 4, 2016…two months later…
YKK, largest zip manufacturer in world, created an “Idea Submission” page: http://www.zipintothefuture.com/submit-an-idea/
Yeah. They both wanted my patent before it published.
They’re not nimble. They are out-innovated even with their resources. And, they have no recourse but to swindle you out of your IP voluntarily (idea submissions) or involuntarily (PTAB)
People like you and me will always exist so, yes, they’re putting up defenses to small players getting legal protections.
The law is supposed to be the one area where every person is equal no matter what resources they have.
These companies know that if they can take that away then they can have it all.
They’re not accepting of their own demise even if it’s better for the rest of the world.
They’d rather kill off innovation and stunt technological development than lose market share and money.
It’s completely selfish and greedy.
Everything has a term.
TernaryJuly 16, 2017 07:04 pm
Tesia, I have my own theory on this. And that is that patents of small companies and independent inventors are considered to be an annoyance, a true pain in the neck by large companies. Large companies don’t have the ability to perform all possible inventions, but they believe to have the ability to do all needed inventions eventually, when they get to it. They see other patents largely as an unwelcome interference with their business. Inventions are internally considered as largely being an engineering event: planned for and requiring known engineering skills and of course guidance by management.
Inventions from outside are an aberration or distortion of their own business plan in urgent need of being squashed. The best way to address that is to become nimble and fast reacting, but for large organizations that is almost impossible. I am pretty sure that a well established ATT would never have bought the Pupin patent. Their inventor Campbell had a much better grasp of the technology and was in command of a reduction to practice. But clever Pupin was quicker.
You and I can probably develop an invention from idea into patent application in a short time, sometimes within months rather than years. Facing thousands inventors who do this independently or at small nimble companies, there is just no way a large organization such as a company can cover all their bases. It is just impossible. Especially in light of well-educated outside inventors with excellent development tools.
The solution is simple: heighten the barrier of getting a valid, valuable patent that can be asserted successfully. (the Sport of Kings aspect). This allows a large company to develop technology on its own terms or use what is available without too much concern of having to pay (much) for infringement. For most large companies obtaining patents is noise in cost and efforts and are seldom money makers (with some notable exceptions). Money is made from selling products or services hopefully uncurbed by constraints such as patents. And that is what I believe organizations such as HTIA are for. To create barriers for unpredictable small inventors to get and assert patents, especially when incorporated into law. From a company’s perspective that is a rational way to spend money.
Tesia ThomasJuly 16, 2017 04:21 pm
Thank you for the explanation.
I know groundbreaking inventions is not due to large tech companies.
Every month there are new articles about my competitors iterations.
The change the shape of zipper teeth or add a flap or add a protrusion to a coil.
If they go after me for my groundbreaking tech then it’s plain jealousy.
And that’s what this whole thing boils down to. Jealousy.
Wanting what they don’t have.
TernaryJuly 16, 2017 04:14 pm
When I send the letter to a company, I have notified them of the existence of my patent. As you imply, I cannot be sure if they read it or not. But they should. As Anon points out: to read disclosures is the purpose of this whole exercise. I should not even have to send a letter as all the disclosures are released on-line on Tuesdays and Thursdays. Sending a letter is a courtesy that may help inventors later in court as some HTIA members know well from experience and to their own detriment.
Making breakthrough inventions is not a privilege reserved for large tech companies, even though they pretend it is. (billions of R&D dollars, ten-thousand researchers, thousands of patents, millions of donations to political parties, hundreds of lobbyists, IPRs, PTAB, the “troll problem”, “the Eastern Texas District problem”, “Alice” and no more 1-year grace period and still there are these pesty, annoying independent inventors and small companies getting patents and sending letters).
The price to pay for patent infringement can be very steep, as Blackberry can tell you. HTIA members clearly want to further limit their risks here and make the patent system the Sport of Kings (borrowed this from Gene) as in Europe.
Tesia ThomasJuly 16, 2017 01:26 pm
Anon & Ternary:
So if I send competitors a letter with my patent and offer it for license then if they don’t read it and later infringe, that constitutes willful infringement?
Or, is it only if they read the patent and later infringe?
How do we know that they’ve read it or not?
Just asking questions. Not asserting anything, Anon. lol
AnonJuly 16, 2017 12:27 pm
I would go your view one step further:
Deem a published patent as de facto evidence of willful infringement.
The purpose of publication is so that the publications are read. MAKE IT A NECESSITY to read the publications, under pains of willful infringement – the very opposite of what the efficient infringers want with their “only under the most egregious situations” which would have the opposite effect of promoting a deliberate “I did not read the patent” mindset that exists today.***
*** I have actually had internal counsel of large clients tell me that they enforce a policy that that their workers may not read published patents.
TernaryJuly 16, 2017 10:53 am
Steve: good job to alert us about this further attack on our ex-golden patent system.
Reading HTIA’s Website is like reading sections of the novel 1984:
“Without correction, enhanced damages law will undermine a critical objective of the patent system–to encourage the dissemination and sharing of information through publication of a patent’s technical disclosure as a means of supporting innovation. Patents cannot fulfill that purpose if the public avoids reading them for fear of being charged with willful infringement and liability for trebled damages.“
For those who agree with HTIA. The purpose of the technical disclosure of a patent or patent application is to allow a reader to be informed of the invention and try to circumvent infringement of the claimed invention by: a) not using it; b) inventing something new that does not apply the invention (which is the true impulse to innovation) or c) taking a license if you are not smart enough to come up with something new. A patent is not like an article in the trade press or a scientific journal.
And HTIA really means business:
“Enhanced damages for willful infringement should be awarded in only the most egregious circumstances involving “a wanton and malicious pirate.” And because insufficiently supported allegations of willfulness can be distracting and prejudicial in litigation and at trial, courts should dismiss them at the pleadings stage or prevent the jury from hearing them.”
This is how I see it: If a company receives a letter from an inventor or patent owner that offers for licensing a patent, then the standard for willful infringement is met if that company does not perform a serious analysis and is later determined to have infringed the claimed invention. It is and should be liable for willful infringement, because infringement at that stage is no longer accidental or inadvertent.
To prevent a jury from hearing arguments on willful infringement is a direct attack on the basic value of the patent system and an overt attempt to further clear the way for “efficient infringement” by the HTIA members.
AnonJuly 16, 2017 09:50 am
A nice – but necessarily incomplete listing Steve.
One of the huge complaints in the Google-Lee era concerned a larger number of undocumented trips by Google with Lee, for which no meeting minutes or agendas were ever published. I believe that none of such meetings are counted in your “lobbying reports.”
A single aspect from those huge complaints, if I recall correctly, was the unveiling of a computerized “Tr011” list by the US Patent Office with the software efforts already substantially completed – prior to the announcement, and with ZERO public interactions prior to the announcement – completed BY Google.
The fox had already been appointed gatekeeper of the chicken coop.
GIVEN that the USPTO (SAWS anyone?) has an abysmal record on transparency, there is but one conclusion to be had from the record number of undocumented trips by Google with Lee.
Sadly (as can be seen with the otherwise somewhat amusing exchanges between Tesia and I), there are people out there who do NOT understand politics and the rhetoric and propaganda games going on.
And I will take this opportunity to once again thank the likes of Ron Katznelson who stepped up and challenged that very same political rhetoric and propaganda when he demanded that the White House “Tr011” paper be cleansed of its improper political gamesmanship. While the final result’s of Ron’s efforts have not (yet?) appeared to have the desired effect of the White House admitting to its game-playing, those who may understand (or desire to more fully understand) the politics have a ready explication of the propaganda that the “Tr011” narrative really is.