Op-ed: Stop patent trolling
By Dan Perkins
March 25, 2020
This article originally appeared in LaCorte News
By now we’re all-too-familiar with Internet trolls, those annoying people who’ve turned social media into a cesspool of insults and idiocy. But those trolls, while aggravating, are essentially harmless. We can learn to ignore them.
There’s another type of troll that is less common, but much more dangerous. These “patent trolls” exist simply to file questionable patents, then sue American businesses and try to profit off their intellectual property.
We can’t ignore these trolls. But we can stop them. In fact, the tool we need is already in place and working effectively.
Patent law is very important to protect inventors and to provide Americans an incentive to create inventions that will, for example, help create drugs to alleviate the symptoms of the coronavirus – and possibly find a way to avoid getting sick at all. According to the U.S. Patent and Trademark Office(USPTO), “patent law specifies the general field of subject matter that can be patented and the conditions under which a patent may be obtained.” The patent serves to protect the inventor from other people stealing that idea and marketing it as their own. There is a process that is used to protect inventors that is under attack by politicians who want to take the teeth out of the law.
Let’s step back and walk through the complex, but crucial, patent process. The USPTO is part of the U.S. Department of Commerce. The USPTO grants patents for the protection of inventions and registers trademarks as intellectual property. Once granted, patent protection generally lasts 20 years. That’s long enough for an inventor to reap profits from the new creation, without stifling creativity in an industry.
Every year, the USPTO’s 8,500 patent examiners are asked to review 600,000 new patent applications. They generally do an excellent job. However, they aren’t perfect. Occasionally they’ll grant a patent under questionable circumstances; for example, to a patent troll who has no intention of using the patent, but simply wants to force an American manufacturer to pay for the patent rights.
A few years ago, lawmakers recognized “that questionable patents are too easily obtained and are too difficult to challenge.” So they enacted the “America Invents Act” to provide a sensible appeal process. Under that law, the Patent Office conducts a trail-like proceeding called the Inter Partes Review (IPR) when a patent is challenged. This allows for a fair process without a complete patent challenge.
The process is also cost-efficient. The midrange cost of an IPR through obtaining a final written decision is $250,000, roughly a quarter of the average amount spent when patent cases go to trial. As one legal observer puts it: “I estimate that the implementation of inter partes review has helped plaintiffs and defendants avoid at least $2.31 billion in deadweight losses by providing an efficient system for challenging patents.”
This system is working. As the New York Times reported, “Consumers no longer have to pay for bogus intellectual property covering, say, a method to take their pills. The appeal board has rejected questionable patent claims over technology to clean up polluted groundwater and wastewater, over podcasting, and over a system that Los Angeles wanted to introduce that looks a lot like E-ZPass.”
That’s why the trolls don’t like it.
They’re pushing to reform or eliminate the IPR process, because it is threatening their ability to dominate markets through shell companies whose only product is litigation. This would be unfair and unconservative.
Opponents of the IPR process act as if a crisis is at hand, but there simply isn’t one. Just a system that is working to solve problems. Most patents stand unchallenged. In 2018, for example, there were almost 3 million patents in force. Only 1,436 were challenged through the IPR process. The system is set up to handle that.
A smoothly functioning patent system is crucial, which is why the Founders gave Congress the power to grant and regulate patents. Bad patents slow innovation and can threaten American manufacturers, but Congress has taken sensible steps to protect everyone under current law.
The IPR is very successful in weeding out bad patents. Conservatives should fight to preserve it, and its protections for American businesses. That’s the best way to keep the patent trolls under their bridges.
Dan Perkins is an author of both thrillers and children’s books. He appears on over 1,100 radio stations. Mr. Perkins appears regularly on international TV talk shows, he is current events commentator for seven blogs, and a philanthropist with his foundation for American veterans, Songs and Stories for Soldiers, Inc. More information about him, his writings, and other works are available on his website, DanPerkins.guru.