Patent trolls, a derogatory term coined by Peter Detkin, a former general counsel at Intel in 2001, refers to a person or company that enforces its patents against one or more alleged infringers in a manner considered by the target or observers as a legal tactic divorced from any effort by the patentee to gain traction for the patented product in the marketplace. The neutral term for patent troll is a non-practicing entity (NPE), which is likely preferred by Peter Detkin now since he works for Intellectual Ventures.
The patent system was invented to avoid the use of trade secrets that can keep technology protected forever. A bargain was made–in exchange for full disclosure of an invention, the patentee enjoys a government-sanctioned monopoly for 20 years. That deal speeds innovation through cross-pollination between competitors’ trade secrets so that you can design-around or add further innovation to a product. The patent system forces collaboration in a manner seen so important to the Founders that it is part of our Constitution. Being so fundamental to our Country, patents are unlikely to go away, but perhaps a better bargain can be struck.
Like all good political battles, there are two sides to patent reform that are entrenched without a unified theory on how to bridge the gap. The crux of the problem is that there are an entire spectrum of NPEs that cannot easily be distinguished. If we told you that there was an organization that came up with some ill-defined technology without any intention to commercialize and was suing companies that made far more contribution to the ultimate product, which was saving millions of lives, you would think negatively about that Patent Troll. Until, I give more detail and explain that was the University you attended that refined a compound that was later found to cure some form of cancer and any recovery would fund more life-saving fundamental research. Who is a troll and not just a NPE? How do you craft a solution that helps only the “worthy”?
While there is nobility in defending a stolen invention, NPEs have been criticized for defending patents that aren’t true inventions and using the threat of an expensive lawsuit to extort “nuisance” money where the suit has little merit. According to David Martin of M-CAM, a company that governments, banks, and businesses hire to assess patent quality, nearly 30% of all patents are not true inventions: they essentially cover things that have already been invented. Consider for example, US Pat. No. 6,003,044 for “efficiently backing up files using multiple computer systems.” To many, it might also sound like US Pat. No. 5,933,653 for “mirroring data in a remote data storage system.” According to David Martin, the later patent should have never been issued. That, still, doesn’t stop NPEs from enforcing the latter patent against companies. Patent suits cost companies billions and threatens the very innovation the patent system was intended to defend.
While some NPE activity is clearly deplorable, how else would inventors defend inventions if there were no system to protect them? Is there a better way to enable inventors to protect themselves while diminishing the activities of trolls?
During the next RMIUG meeting, we will explore the patent system, NPEs from both sides, and some ideas of how to make it better with a terrific local expert:
Tom Franklin (Tfranklin@kiltown.com) is a partner at Kilpatrick Townsend, and focuses his practice on patent prosecution, trademark prosecution, licensing and intellectual capital management with more than a dozen years of experience with intellectual property. He is experienced in intellectual property audits, due diligence and strategic planning processes. Through an IP Asset Management plan, he tailors strategy to business goals, competitive pressures and funding constraints to leverage intangible assets with intellectual property. He uses IP protection to maintain the dominance of large companies or assist smaller enterprises who are vying to dominate. Prior to entering the field of law, Mr. Franklin spent nine years working in industry and brings a wide-range of technical skill to his clients. Tom is a member, of the Colorado Bar, the American Bar Association and the Davinci Institute, a Futurist Think Tank.
The meeting is Tuesday, November 8th from 7:00 – 9:00 pm (with optional 6:30 pm start for refreshments and informal networking). The meeting will be held at The National Center for Atmospheric Research (NCAR) at 1850 Table Mesa Drive in Boulder. To get to NCAR from the Boulder Turnpike (US 36) or Broadway (US 93), take Table Mesa Drive west towards the mountains for approximately 2.5 miles into the foothills. NCAR is at the top of the hill. For door-to-door driving directions, go to MapQuest (www.mapquest.com/), click on Driving Directions, enter your starting address, NCAR's address, and voila! Park in the NCAR lot, go in the main door, and ask the guard to point you to meeting, which is held in the main auditorium, right off the lobby. The meeting is free and open to the public, but we may pass the hat to help defray expenses.
Our meeting location seats about 120 people. That is usually enough room to accommodate all attendees, but it's impossible for us to predict how many people will show up for any given meeting. Seating is always on a first-come, first serve basis, and in the event of more attendees than seats, we won't be able to admit additional people into the auditorium after all seats are filled.
Thanks to our four sponsors who help make RMIUG meetings happen:
Applied Trust Engineering (www.appliedtrust.com/) — an IT security and network/systems infrastructure consulting services company sponsors the refreshments.
ONEWARE (www.oneware.com) — a Colorado-based software company that provides semi-custom web-based applications, sponsors the RMIUG meeting minutes.
ReturnPath (www.returnpath.net) — a Colorado-based software company that makes email work better by scoring and certifying email senders from around the world sponsors the RMIUG meeting minutes.
Copy Diva (www.copydiva.com) which provides marketing project management, marketing communications consulting, and web content development is the AV sponsor for RMIUG.
Consultants and companies are invited to bring Internet-related Product information, brochures, and business cards which will be displayed on an information table.
There are email mailing lists set up for this group. To subscribe or unsubscribe, see www.rmiug.org/maillist.html. You can also reach the RMIUG "Executive" Committee at email@example.com. Our web site is at www.rmiug.org/
Please note that RMIUG is hosted at NCAR and we are their guests. NCAR has security regulations in effect that we must follow in order to use the facility. If any RMIUG attendee is unwilling to follow these simple regulations, I would ask that he or she not attend and instead read the minutes after the meeting.
Here are the NCAR security policies that must be followed:
1. No weapons.
2. Must sign in at front desk and provide name.
3. Cooperate with security folks including providing ID if requested.
4. We are guests of NCAR so cooperation and courtesy are expected when dealing with NCAR staff.
If there are any questions or concerns with this policy, please contact me directly.
Thanks, Josh Zapin (firstname.lastname@example.org).