In the NY Times article The Patent Troll Smokescreen, Joe Nocera nicely sums up where big tech lobbying has taken the US patent system since passage of the AIA:
"But what if, in the name of cracking down on trolls, Congress passes an anti-troll law that winds up having huge negative consequences for legitimate inventors? What if a series of Supreme Court rulings make matters worse, putting onerous burdens on inventors while making it easier for big companies to steal unlicensed innovations
As it happens, thanks to the 2011 America Invents Act and those rulings, big companies can now largely ignore legitimate patent holders.
Of course, they don’t call it stealing. But according to Robert Taylor, a patent lawyer who has represented the National Venture Capital Association, a new phrase has emerged in Silicon Valley: “efficient infringing.” That’s the relatively new practice of using a technology that infringes on someone’s patent, while ignoring the patent holder entirely. And when the patent holder discovers the infringement and seeks recompense, the infringer responds by challenging the patent’s validity.
Should a lawsuit ensue, the infringer, often a big tech company, has top-notch patent lawyers at the ready. Because the courts have largely robbed small inventors of their ability to seek an injunction — that is, an order requiring that the infringing product be removed from the market — the worst that can happen is that the infringer will have to pay some money. For a rich company like, say, Apple that’s no big deal."
Exactly, and with the effectiveness of AIA trials, we now have a legal framework where it is relatively inexpensive and quick (at least compared to in court) to invalidate a US patent that is the subject of a lawsuit. So why do I need a license again Mr. small time inventor? This is not an argument against patents per se because once the typical big tech acquisition occurs -- the new ownership gives financial parity making the pushback to the validity challenge worthy of serious consideration.
Copyright © 2015 Robert Moll. All rights reserved.