Patent Search (Sort Of)

Looking For the Patents Around You

The monetizing of intellectual property, in general, and patents, in particular, has long been a subject of interest.  Certainly, patent trolls, the subject of this issue’s feature story,  have found their own unique way to monetize the patents they own.  But, for the rest of us, this concept may be just an interesting option we might one day consider.  Perhaps that day was yesterday?

Peter Detkin coined the term Patent Troll while Intel’s patent counsel to replace a less glamorous term he had been using to describe the ugly, bottom feeding, scum sucking, parasitic creatures collecting tolls (figuratively) from him for crossing bridges that no one else was using.  To some on Peter Detkin’s side of the river, patent trolls give the mythological Scandinavian creature after whom they are named an even worse reputation.  But we should remember before we pass judgment that beauty is in the eye of the beholder.

What patent trolls do that is so offensive is to buy up patent rights – something like buying bridges – to patents that no one is actually using – and which they have no intention of actually using themselves.  Just like the fabled trolls they are named for, they don’t use the bridges to get to the other side.  Their preferred position is under the bridge where they lie in wait, in the muck, for some Billy Goats to come along. 

Unfortunately for the poor Billy Goats, patent trolls are not the dim witted troll creatures we learned about in third grade.  And, more important than that, they are real.  They don’t go away when you turn on the lights.  At least, they haven’t so far.

For the outraged posse wanting to cross the bridges to the future under which the patent trolls lie in wait, it is a matter of fairness.  Innovation and progress are stifled, they say, when those who, like themselves, are trying to live the American dream are ambushed by ugly, opportunistic patent trolls with hijacked claims to innovation apparently abandoned by the rightful owners.  Such patent rights, they feel, ought to be fair game for all.  Essentially, they have a use-it-or-lose-it philosophy. 

OK.  It’s time for a little refresher on what a patent is.  A patent (in the U.S.) is issued to a person who invents something.  The something can take many different forms which are not important for this discussion.  The important thing is that a patent conveys a right to the inventor to exclude others from making, using, or selling the invention.  That’s all a patent is good for.  A patent is “intellectual” property and can be sold, bought, rented, shared, traded, used, abused, or abandoned just like any other piece of property.  And, since 1995, patent intellectual property rights have been limited to a period of 20 years.

So, all the so called patent trolls are doing is exercising their right as owners of the patents they acquired to exclude others from making, using or selling their invention or, alternatively, pay a toll or royalty.  What’s wrong with that? 

Admittedly, it’s their invention not because they invented it but because they bought it.  And, if they are good patent trolls, they probably have a whole big bag of those purchases slung across their ugly misshapen backs.  But, while you may have no compassion for the heavy load they bear, their enterprise makes them rich trolls and they willingly bear the burden.  Why should this collector of valuable things be called a “troll”.  Why not  patent entrepreneur.  You may not like that kind of down and dirty entrepreneurship if you are trying to cross their bridge but things would look a lot different from the muck under your bridge. 

Mythological history, I think, clearly shows that trolls, generally, are losers.  They may be feared and reviled but in the end they always lose because … well, because that is the lesson that fairy tales teach in the land the river divides.  The successful entrepreneurship of modern patent trolls, however, is turning around that loser status.  Ingenuity and self esteem was the only driving force they needed to make something of themselves in the patent business.  Their outlook from under the bridge is getting a lot brighter.  No longer do patent trolls need to skip school on picture day.

Of course, being trolls they are still feared and reviled – by the fair haired, bright eyed boys who see new competition in the category “most likely to succeed” and, may fairy tale legend forbid, for prom king!  These – well, shall we call them patent bullies? – are all in a flutter because tailors are now making tuxedos in troll sizes. 

What are patent bullies?  Well, from a patent troll perspective they are much like the third Billy Goat Gruff.  You remember the third Billy Goat Gruff with the hoarse bossy voice who followed his two smaller brother Billy Goat Gruffs across the fairy tale troll’s bridge.  He claimed passage across the troll’s bridge, according to the tale, by using his horns to poke the troll’s eyes out through his ears, crush him to bits body and bone, and then toss him over the bridge.  Then, as the fairy tale tells it, this third Billy Goat Gruff went up the hill to join his two brothers who, by the way, finagled their way across the bridge with lies and false promises, where they ate and ate and ate until they all got so fat they could not walk.    

Should patent trolls be criticized, vilified, and head butted just because they are exercising a legitimate right?  Making, using, or selling someone else’s invention without their permission is called infringement.  The fact that patent trolls are ugly and don’t make, use, or sell anything is an argument patent bullies make to excuse their free use of someone else’s patented invention in order to get so fat they cannot walk.  What a world we live in, huh? 

Well, feel that wind?  It’s the wind of change that always comes before the storm of reform.  It foretells new opportunities.  Congressman Lamar Smith (R-TX) has introduced legislation which he feels will improve the quality of patents issued by the U.S. Patent and Trademark Office and is intended to reform certain patent practices which patent trolls have relied on.  Thus, his Patent Reform Act of 2005 clearly addresses patent trolls and the things they do that he feels “disrupt the operations of high-tech companies and other businesses.”  Could Lamar Smith be a Billy Goat Gruff?

There is no doubt the patent trolls and the patent bullies are preparing strategies, tactics, arguments, and plans to address this new challenge.  It makes one wonder about the poor chicken.  For the first time in history he’s trying to figure out whether or not he should cross the road.  The patent bully has invited him to dinner on the other side and the patent troll wants to charge him fifty cents to get there.  It used to be a no-brainier.  But, now, he’s giving serious thought to just staying put.