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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Wednesday, January 25, 2006"Patent Trolls" and the Separation of Knowledge from Production.It is well-known that language concepts are sometimes utilised as a weapon in political disputes. As currently there are many such disputes ongoing in the field of Intellectual Property law nobody should really be surprised that certain concepts are utilised or even coined for such usage.One of such concepts seems to be the  patent troll.But what exactly is a "patent troll"? Wikipedia offers a definition as follows: "[...] Patent troll (also 'patent pirate') is a derogatory phrase coined by former Intel assistant general counsel Peter Detkin in 2001. Originally, it described an individual or company with a patent portfolio containing important, fundamental software patents, which it never intended to commercialize. Instead, a 'patent troll' would actively pursue a strategy of looking for potential infringers and proposing license agreements to companies. Where the patent troll is unable to achieve a licensing agreement, it threatens, or enters, patent infringement litigation. To avoid litigation, companies often choose to settle by purchasing a license. Today, 'patent troll' is used to describe a number of businesses using similar patent strategies. [...]"And FFII says as follows: "[...] Some people at Intel and other large companies have recently been talking about "patent trolls". They are typically referring to companies that develop or acquire patents in order to look for infringers. The FTC report of 2003 refers to them as "non-producing entities" (NPE). [...]"Is it really justified to denounce non-producing patent holders as "patent trolls" or "patent pirates"? Mr. Hartmut Pilch,  Ex-President of the FFII, gives advice as follows: "[...] The term 'patent trolls' should really be reserved for those corporate patent lawyers who now, after they succeded in lobbying governments for unlimited patentability, appear dismayed to find their company on the wrong end of the stick and start calling the winners bad names. Acacia, Eolas and others only implemented successfully what the losers from the corporate patent departments had preached. Or did we hear wrong? Who was it who told us just five minutes ago that in the information society patents are the currency of knowledge? that this allows people to receive a reward for their work independently of whether they produce or not? Who did we just hear arguing that the patent system is there to help the small guy? Was it the CEO of Acacia, who, by buying patents from small people helped small guys turn their ideas into money? No, it was, without doubt, one of the patent trolls from IBM, Siemens or the European Commission. [...]"Does such "lawyer-bashing" really help? Wikipedia correcly remarks: "[...] The 'patent troll' strategy is lawful. Patent protection grants an inventor or his assignee a right to exclude others from making, using and selling the patented invention for the term of the patent. As far as the United States is concerned, this is enshrined in the United States Constitution (Article I, Section 8). Moreover, patents are transferrable entities which can be sold, bought, assigned to anybody and so on. Important to the patent troll strategy, an owner of a patent does not have to commercialize the patented invention in order to obtain protection. Moreover, courts have held that enforcing patent rights is not patent misuse. [...]"By its ability to enable a separation of knowledge, the patent system is one of the cornerstones of any truly globalised "knowledge economy" wherein knowledge is transformed into some kind of commodity which can be exchanged in trade. Such separation of abstract functional problem-solving knowledge on the one hand from implementation-oriented craftsman knowledge on the other hand is a key feature of globalisation: Products are developed in one country by some company, and the production is made elsewhere by others. I can't see why such doing is 'evil' per se. There is a lot of romantic attitude with some of the anti-globalisation critics also attacking the patent system, thereby glorifying the sweaty transformation of matter while downplaying the intellectual efforts which are a prerequisite of all material transformations. There appears to be something like a strange coalition of some lawyers employed with very well-known mega-corporations fearing their business might be hampered by independent patentees, on the one hand, and romantic antagonists of the economic exploitation of knowledge under the conditions of a globalised capitalistic economy, on the other hand. In my view, enterprises like BTG represent proper ways to commercialise Intellectual Property without running a production shop.Technorati Tags: Patents, Globalisation, Patent Troll[UPDATE] From recent edition of The Economist:"[...] One of the most contentious of these new relationships is outsourcing?the handing over to others of what were once considered to be core functions of the company. First to be transferred to more efficient providers were companies' manufacturing operations. Firms such as Nike have stretched this idea to such an extent that some of them now make nothing: all Nike's shoes, for instance, are manufactured by subcontractors. Nike employs few people directly. Such companies have become the orchestrators of a brand. Their baton has only limited control over the musicians who play for them, but that does not prevent them from producing great music (or shoes).This might be seen as an illustration of what I have thought of.
Products are developed in one country by some company, and the production is made elsewhere by others. I can't see why such doing is 'evil' per se. It's not. What's evil is the monopoly a patent gives, that someone can be the _only_ developer allowed. There's no good reason for that, it's just lining lawyer/politician/MBA pockets at the expense of real innovation. In the complete absence of a patent system, real creators/designers could (and do today in many fields) still happily charge for the service of creating/designing. That is the correct and natural free-market model for information work. Patent monopolies have no place. People who actually create are just fine without patent monopolies. It just means the market's more efficient, no room for the patent lawyer and MBA parasites in a global free market of goods and services. wherein knowledge is transformed into some kind of commodity which can be exchanged in trade Knowledge is not consumed like a barrel of oil or a sack of corn, and unlike a barrel of oil or a sack of corn, If I give you some knowledge, now we both have it, everyone's better off. It's not a zero-sum game. You simply don't understand knowledge (actually, I expect you do, but you like your cushy patent-parasite role), it is simply invalid to treat it as a traditional commodity. Post a Comment
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