TROLLS 2: THE ELECTRIC BOOGALOO
Writer’s note: This is a story where you want to follow the
embedded links, as it presents a whole picture of what antipatent trolling advocates are up against in the Senate… and
some of the links will make you giggle.
Image via Wikimedia
Patent trolling is back in the news in 2014! (Like it ever left?)
At the end of November 2013 we published our review of
what was happening in the case of Everyone vs. Patent
Trolls. A quick summary: The House of Representatives was
considering legislation designed to stymie low-quality patent
lawsuits. Tech giants Microsoft and IBM lobbied to have the
bill gutted of the language which would actually protect
companies from the litigious patent trolls, stating that “the
provision would discourage innovation because companies
won’t feel they can adequately protect the ideas and designs
they invent.” The language was removed and the bill - made
99.9% ineffective because of the language removal - was
passed in the House and bound to the Senate.
Now, despite the fact that Congress is generally dysfunctional, and not prone to passing
legislation that does anything substantive or helpful for the American people, they do seem to
like protecting corporations from… well, everything. So you’d think that between the legislation
having been gutted of all substance and the fact that the bill is -primarily- designed to (at least in
theory) protect large corporations from frivolous lawsuits, this would be a slam dunk to make it
through the Senate in record time…
Not quite: In political moves that are quite inspiring, several Democratic senators have launched
upon a campaign to strengthen the gutted Goodlatte bill by including measures that amend the
Covered Business Method review program so that the USPTO can reject infringement claims
that are deemed “low quality,” thusly protecting both large corporations and the smaller guys.
(Basically, tech startups and software innovators.) Kudos to them, right? Let’s pass something
that does something for someone for once.
Hah! Not so quick there, friend… This is the SENATE we’re talking about. And, a bill of this sort
would require… wait for it… here it comes… you’re gonna laugh so hard…
Remember, Congressional Republicans are the geniuses who met on the night of the 2009
Presidential Inauguration and made a pact -- A FREAKIN’ PACT -- to willfully block any
legislation that President Obama supported, regardless of its merits or value to their own
And, boy have they ever.
And, you know that President Obama has come out strongly in favor of legislation reform that
will curtail patent trolling.
So you do the math.
This doesn’t even take into account that IBM and Microsoft and other big corporations will
furiously tilt against any legislation that includes CBM expansion. Because it might *slightly* limit
their ability to litigate against perceived trademark/patent infringements… Because, big tech
giants like Microsoft, IBM, Apple, Google and the lot really need the wee bit of money they
*might* lose out on (or as one colleague points out “the principle of being in the right”) by
including language that protects their smaller techie brothers and sisters from the frivolous (and,
often bankrupting) litigation of patent trolls…
This is generally where Seth Myers and Amy Poehler would come on the television screen and
do a segment of “Really?!?!? with Seth and Amy.”
How rich is rich enough, already, tech giants? Can’t we afford to protect the little guys? You
were once one of them, have you forgotten your startups in your garages?
Anyhoozel, we rant and somewhat digress… At the same time as this legislation is slowly
snaking through Congress, there are two other compelling stories about patent trolling to
He’s baaaacccckk: The guy for whom the phrase “patent troll” was created, Anthony Brown, is
back working the gambit after eight years off the market. (He sold his original company in 2005
for $27 million dollars and signed a non-compete clause.) And, he’s apparently Chicago
based… with his Cascade Ventures Inc. located in the suburb of Northbrook, Brown has once
again resumed litigating large companies such as Walgreen’s and Whole Foods claiming
technology patent violations. Oh, grand… just what Chicago needs, another dodgy
Second - Forbes’ contributor Richard Levick published a column at the end of December that
states there is a danger lurking in the passionate fight against patent trolls:
“The problem is that, in our collective zeal to disincentive extortion, we tend to assume that any
small company is a troll if it holds a patent it hasn’t used, and is suing a big company that has.
By such a generic and, in the current climate, perhaps inevitable expansion of the term “patent
trolls,” universities can fall under the stigma, as can small- or medium-sized companies working
to develop new products.” (Levick, Forbes, 26 December 2013)
This is a salient point. So the question becomes “how do we target the evil doer patent trolls the ones who snap up patents and are extortionists… erum, we mean, overly litigious, while
allowing for legitimate patent infringement claims to be heard/acted upon?”
Good question. Perhaps defining “low quality patent claims” in a clear way is a good start?
We shall be interested in watching what happens next in the curious case of Everyone vs.