So sayeth Timothy Holbrook, associate dean of faculty and professor of law at Emory University School of Law, speaking of patent trolls, also known as Patent Assertion Entities — which seems a euphemism about as extreme as calling a Catholic priest who molests children a Penis Insertion Entity:
What is lost in this mudslinging is that much of what PAEs do is laudable — paying inventors. Patents don’t grow on trees. Someone came up with the invention and incurred considerable expense to obtain the patent. Many inventors can’t bring their invention to market themselves, however, so selling the patent may be the only way for them to make money. By buying these patents, PAEs compensate inventors, one of patent law’s objectives.
I have a big problem with that. A HUGE problem with that. My problem with that is that it distorts reality. Several of my clients have been assaulted by patent trolls, and often the work I’ve done is involved, at least tangentially when not directly. I can guarantee that none of my work has ever been culled from, inspired by, or even performed after reading a patent document. That, however, is not a legal defense. It doesn’t matter at all if I’ve put hundreds of hours of my life into developing something and can prove that I did it all myself. If a guy filed a patent application on Friday, and tomorrow I deploy an application that I’ve written that gets within a hundred yards of infringing it, I’ll be at risk of an outrageous fucking in a couple of years when the patent is approved even though I’m completely unaware of the patent’s existence. Ignorance of the patent is no excuse.
The patent trolls I’ve seen are not the altruists the author makes them out to be. They’re blood sucking shit monsters. They scoop up almost any patent they can find that can be had for cheap, and with no intention of ever producing a product or service based upon that patent, they go pluck all of the low hanging fruit they can find. The low hanging fruit in this case is honest, hard working people actually delivering products and services, paying taxes, stimulating the economy, and in general not being blood sucking shit monsters as are the patent trolls who go after them.
The first of my clients to be attacked by a patent troll was attacked because the work I did allegedly violated the troll’s patent. Amusingly, a very large number of web sites also allegedly violated that patent. The claimed infringement? Using an HTML select element, that thing you probably know of as a “pull down menu” when you see one on a web page. No shit. The partners who were principals in the client company freaked out. Ohs noes, a patent violation! We’re really fucked now! I told them to ignore the troll completely unless/until a petition was filed with the court, but if they couldn’t stand to do that to send a cease and desist letter. They couldn’t stand to just ignore the troll, and sent the cease and desist letter. They never heard from the troll again.
The ugly part about paying a troll? You are saying, with your signature on a check, that you are guilty of violating the troll’s patent. You are acknowledging that the device or method you’re using belongs to the troll. It’s a smoking gun. If you should stop paying the troll a few years later while you’re still using the technology that got you into the troll’s grip, you will be sued and you will lose — for breach of contract. The validity or invalidity of the patent will not even be at issue, and the judge will not hear of it.
The last of my clients to be attacked by a patent troll was chosen along with a long list of others because they were perceived as low hanging fruit, the most common profile of victims of patent trolls — a company with significant resources, but one who is more likely to pay a big licensing fee than to spend a couple or three million dollars to fight back. In this case, the list of selected victims was users of a particular system and service provided by Qualcomm, and again it was my work that brought about the alleged violation. In that case, Qualcomm surprised the hell out of me by taking the lead and taking on the patent troll themselves, on behalf of themselves and their customers. I was a bit nervous about that one while it was still unfolding, as I was not Qualcomm’s customer and so wasn’t explicitly held harmless, and the troll was actually eager to get the matter into court in East Texas, where patent trolls almost always win. There’s a whole freaking industry sprung up around it in places like Tyler, where you can hire a resident agent to register your company as a foreign corporation in order to establish competent jurisdiction for the kangaroo courts there.
I ran afoul of Amazon’s “one click” patent once upon a time, but fortunately hadn’t yet deployed the infringing software. It was done before the patent was issued, but was part of a much larger work that wasn’t yet deployed. I had to modify the thing to make it take two clicks, and my client was what I’d call wicked pissed. He wanted to deploy it anyway, but I still had full control of the software (the demo was running on my server, not his) so I was able to avoid liability by refusing to deliver it. I was (and others were) interviewed by a reporter for the Wall Street Journal about Amazon’s one-click patent, and she was apparently pretty excited about it and dedicated to covering the topic thoroughly. A tad too thoroughly, it seems, as the article was killed. Maybe it was just too late and the media’s attention was on something else already, maybe it was something else. She didn’t say. I don’t blame her.
What Are The Fucks with software patents anyway? Some guys invented computers, and some other guys invented programming languages that we can use to tell the machine to do what it was designed to do. I am absolutely limited to making the machine do what it was designed to do — I can make it manipulate, store, and communicate binary data, but I cannot make it do anything that computers are not designed to do. The whole world would laugh at some clown patenting the act of making a wheeled conveyance execute a left turn, but for some reason I can be sued into not just bankruptcy but indenture for the simple act of telling my computer to manipulate binary data in a given way to produce a given outcome if someone else owns exclusive rights to that outcome.
I don’t know that it’s common knowledge outside of nerd circles, so please forgive me if I’m telling you something that you already know: To demonstrate the bat shit insanity of the US patent system, a couple of guys patented the act of entertaining (“exercising”) a cat with a laser pointer. Not the laser pointer itself, not the cat, but the act of using the laser pointer to entertain the cat or any other animal with a chase instinct. The title of the patent is “Method of exercising a cat”. Apparently it was a novel enough invention in 1995 to be awarded patent protection. The owners allowed the patent to lapse in 2007, so you can now legally use a laser pointer to entertain or exercise your cat or any other animal with a chase instinct.
So that, friends and neighbors, is “one of patent law’s objectives”. I’m sure that Mr. Holbrook can come up with many examples of patent law motivating people to innovate to develop things that might not exist if just anyone could copy them without doing any expensive science or engineering of their own, but again, What Are The Fucks with software patents? I told my computer how to do this thing, and if you tell your computer how to do that same thing you have to pay me?
Sometimes I wish my opinion would matter.