Patent Law

The White House Hates Patent Trolls


Patent Troll
Credit: Diver721: Dreamstime

As who does not? The President's Council of Eonomic Advisors, the National Economic Council, and the Office of Science and Technology Policy have just issued a new report on the harms that patent assertion entities (PAEs), a.k.a. patent trolls, are doing to the economy. The report asserts that aggressive litigation by PAEs slows down the pace of innovation. PAE litigation is chiefly a software patent problem. As the report notes:

An additional reason that the issue of overbroad patents is particularly salient in software is due to the prevalence of "functional claiming" in these patent classes (Lemley 2012). A claim term is "functional" when it recites a feature by "whatdoes rather than by what it is" (In re Swinehart1971). 

Functional claiming involves claiming exclusive rights over any device that performs a given function, regardless of how that function is performed. Functional language can therefore lead to very broad and/or vague claims. These problems are especially acute for software patents.

For these patents, it has been argued rhat the code Is the function, with the implication that a software patent arguably excludes any other code that performs that same function. In contrast, in pharmaceutical; the distinction between a function and the means used to perform that function is generally clear. For example, several patents have been awarded for the function of reducing cholesterol; each patent covers a different chemical compound—a different means of providing that function.

Compounding the problem is the fast-moving, interdependent nature of technical change in the software industry. Functional claims can be used to 'over-assert' patent by attempting to cover products and processes that were never contemplated by the inventor or the examiner as being within the claim scope at the time of the invention.

For example, a patent claim about a programmed processor could be asserted broadly to cover any and all devices that achieve the claimed result, rather than being limited to a device programmed with the specific software used by the inventor. In addition, a single piece of software or website might have several thousand "functions" that could be claimed in as many patents.

It is also difficult for an outsider to judge what an inventor meant by a claim and to know what sort of invention would be "obvious" to a skilled practitioner and thus unworthy of a patent.

The new White House report observes that a similar spate of patent-sharking occurred in the late 19th century with regard to overbroad railroad and agriculture patents. That situation was resolved when farmers and railroad companies banded to together to aggressively fund counter lawsuits to fight patent sharks and get the non-obvious criterion for patent issuance better defined. Interestingly, the information technology lobbying organization, TechAmerica, issued an immediate statement praising the new report:

TechAmerica, the leading U.S. technology association, today welcomed the White House initiative to combat "Patent Trolls". The following statement is from Kevin Richards, TechAmerica's Senior Vice President for Federal Government Affairs:

"The strong support by the White House adds to the strong bipartisan support that reigning in abusive patent litigation shares.  Protecting innovators intellectual property is a key component to maintaining the competitive advantage the United States has over the world.

I weighed in on the controversy with my 2012 column, "Patent Trolls or Tech Fairy Godmothers?" in which I concluded:

Instead of a capital market for inventions, information technology companies in the U.S. find themselves enmeshed in a growing capital market for litigation. The result is reduced incentives to innovate, slower introduction of new advanced products to consumers, and reduced earnings for shareholders.

The Obama Adminstration is basically right that the patent system is broken when it comes to software patents. Frankly, I would prefer to junk the whole concept of software patents.

In in the alternative, the TechAmerica statement may mean that infotech companies may be ready to band together to fund a war chest and just keep suing the bastards back until they go broke.

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  1. up to I looked at the receipt saying $5461, I have faith that my friend woz really bringing in money in there spare time from there computar.. there best friend has been doing this for under 21 months and resently paid for the morgage on there cottage and got a gorgeous Lancia. go to…

  2. Bailey wrote significant alt-text? When did this start?

    1. J: Well, thanks for noticing – I guess. 🙂

      1. Oh, we notice.

  3. You’ve got to pay the patent troll if you want to get in that toy’s soul.

  4. What to fix, What to fix… Gitmo? Drone murder? War on drugs? IRS? Entitlement spending?

    Ah Ha! Patent trolls!

    1. “Ah Ha! Patent trolls!”

      And blame them for unemployment! Genius!

  5. The fix is simple and will never be done.

    Loser pays.

  6. “PAE litigation is chiefly a software patent problem.”

    So take whatever the EU language there is that disallows software patents there, and adopt it into US law. Next?

  7. Sometimes man, you jsut have to roll with it.

  8. Reminds me of when the examiner said my method of use patent claims were obvious because drugs in a similar chemical class existed that were analgesic, and therefore accomplished the same thing as using the drug I was claiming a method of use as as decongestant.

  9. In in the alternative, the TechAmerica statement may mean that infotech companies may be ready to band together to fund a war chest and just keep suing the bastards back until they go broke.

    Good luck on that. The companies that cry the loudest about patent trolls also sue vigorously when it is their patents at stake. They only want the “bad” patent trolls to go away, not the good guys who work hard for their patents and want to protect them.

    I’m not saying there aren’t problems with software patents, but I wouldn’t hold any hope that TechAmerica will do any good when most of the tech companies out there want to sit on both sides of the fence. For every “tech company” that consists only of a mail drop and a suit against 30 big companies in Tyler, Texas (a real patent troll?) you have a big company suing some company run out of a guy’s garage that is actually producing a competitive product.

    The trolls aren’t the problem. They are just the symptom. As long as software patents exist in the current form, the problem will continue, war chests to fight them aside.

    1. Right, you shouldn’t be able to claim patents over “look and feel” or “pinch-zoom” either. Anything that is a surface feature that could be duplicated without looking “under the hood” so-to-speak should be unpatentable. If it takes reverse-engineering a product, or disclosure of proprietary information to duplicate, then it should.

  10. This sounds like something that the Republicans should work on, if only to blunt claims that they’re unable to function or work with the White House due to scandalmania.

  11. I think tehre ought to be a rule that if you don’t market a product based on your patent within a certain time frame you are forbidden from claiming infringement. The whole point of a patent is to get you to share your trade secrets so as to spur innovation. If it turns into a thing that prevents people from making ANY kind of competing product (even if it has completely different underlying design), then that’s misisng the point. A patent is a deal between the state and the invention – you disclose your your tech works, and we grant you a temporary monopoly. We shouldn’t be in the business of just granting people monopolies when there’s no disclosure of any information that anyone couldn’t duplicate on their own.

  12. Bad idea, Hazel. If the marketing standard is the same as for trademark, you can “sell” one of the item to your cousin, and that’s enough to keep it alive. If the standard is more stringent (and therefore arbitrary), that’d work against the garage inventor who doesn’t have the resources to market the invention and is inventing in the hope of licensing to someone who does; and it’d make patents useless for new drugs, medical devices, pesticides, food additives, etc. that require years of testing before they can legally be marketed.

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