|
|
|||
|
IP Views Blackberry Devices and the Debate on Patent Trolls Fortunately, that did not happen. Thanks to a galactic $612.5 million settlement reached between RIM and NTP in March 2006. The figure could have reached billions had the patent office not invalidated other patents of NTP, which gave RIM an advantage at the bargaining table. The Blackberry case is one of the many infringement cases that have clogged U.S. federal courts. It may involve the so-called “patent troll”: a plaintiff company that is virtual unknown, with no substantial assets, few employees, but armed with “weapons of business destruction” – patent rights. The alleged infringer, in the meantime, is an active commercial producer of goods with a robust asset base and usually successful commercial operations. The term “patent troll” is a relatively modern term that has not yet found its own concrete legal definition. For example, it has been defined as one that “purchases a patent, often from a bankrupt firm, and then sues another company by claiming that one of its products infringes on the purchased patent.” In another instance, it is defined as one that “enforces patents against purported infringers without itself intending to manufacture the patented product or supply the patented service.” The term has adopted a pejorative meaning, as critics accuse patent trolls of being a drag on innovation, and an obstacle to the economy. (In Scandinavian folklore, a troll is a supernatural being in the form of a giant or dwarf that lives on caves or mountains.) Peter Detkin, the assistant general counsel of Intel, referred to them as firms “that try to make a lot of money off a patent that they are not practicing and have no intention of practicing and in most cases never practiced.” Because of a lack of a definite legal meaning, some activities that are undoubtedly legitimate may find themselves trapped under this pejorative term, and so there is a need to insulate the entities that conduct such acts. These include a patent-company set up for developing, acquiring, maintaining, and enforcing patent rights; a university who obtained a patent for research purposes, and an inventor who wants better enforcement of patent rights to his invention. The significant question that confronts the policymakers in the U.S. is this - in its pejorative sense, are patent trolls a drag to innovation, and an obstacle to the economy? There are two diametrically opposed views on this. Their views conflict with each other because of different approaches to the concept of innovation. Innovation can mean two things: invention per se, on one hand, and invention coupled with commercialization, on the other. Those who take the first view claim that patent trolls enhance innovation because their behavior tends to increase the value of patents. The increase in value results, primarily, from increased liquidity in the market for the transfer of patent rights. The result of increased patent value is an increase in patenting activity. Those who espouse the latter view would say that patent trolls discourage innovation because a producing company would have a risk in developing a new product since it might be subject to a number of unforeseen patent claims. Such risks add costs to the product development project. Going back to the Blackberry case, one might ask how NTP got a hold of patents like Blackberry’s. The reason given by some has something to do with the way examination is conducted at the U.S. Patent and Trademark office, where well-intentioned but overworked patent examiners are flooded with highly complex patent applications and are tasked to approve or deny them on deadlines that would make Einstein sweat. The examiners' union calls the PTO a "sweatshop," and no wonder. The examiners, usually recent college graduates, face a variety of pressures, including an internal point system that many say favors speed over accuracy, and applications filed by seasoned professionals, experts in making even the most prosaic "invention" sound like cutting edge technology. The debate on patent trolls will continue to be a subject in the policy arena, the court system, and the economy as a whole. With no clear answer to this in the soonest time, what is necessary for the public good when a patent troll and a producing entity are dragged into a suit, is a reasonable settlement. That is what exactly happened in the Blackberry case. But with hundreds of millions of dollars at stake, one might compare by interesting analogy, a patent troll as a hotdog dealer along Manhattan street, who actually owns the whole Empire State building. References: 1. James Surowiecki, Blacberry Picking, The New Yorker, http://www.newyorker.com/archive/2005/12/26/051226ta_talk_surowiecki, December 26, 2005; 2.Tim Wu, Weapons of Business Destruction, http://www.slate.com/id/2135559/, February 6, 2006; 3. John Johnson, Don’t Feed the Trolls, les Nouvelles, pages 487-495, September 2007; 4. Wikipedia, E:\Patent troll - Wikipedia, the free encyclopedia.mht |
|
||||||||||||||||
| Copyright 2012 | All Rights Reserved | Bengzon, Negre, Untalan: Intellectual Property Attorneys | By MyGuaranteedSEO.com |