By Kevin E. Noonan --
Admittedly, only on its Op-Ed page. But last Saturday Joe Nocera wrote a remarkably sane and reasoned column, entitled "The Patent Troll Smokescreen," pointing out that "big companies with large lobbying budgets" are using the patent troll meme to change patent law in their favor (but in ways that will not increase innovation, benefit the country or "promote progress" for anything other than their bottom lines).
The column was prompted by the paradox that for some, like the Electronic Frontier Foundation, anyone who is a non-practicing entity (or NPE) and asserts a patent is a patent troll. Mr. Nocera clearly understands the received wisdom about patent trolls: they are NPEs that "use [their patents] not to further innovation or manufacture a product but to conduct a kind of legal extortion racket," based on patents that are "sometimes absurdly vague." He cites as an example the Lemelson bar code patents (which of course were never accused of being vague but this is journalism so, close enough). Patent trolls, Mr. Nocera writes, are "sand in the engine of commerce."
But it is clear that Mr. Nocera has been taken aback by the rhetoric that patent trolls should include universities because "[w]henever the university's scientists come up with innovations -- which they rarely intend to use to manufacture a product -- WARF [who licenses patents from the University of Wisconsin] applies for a patent and then seeks to license it, just as trolls do." Naively, he then states that "of course, nobody thinks a university is a patent troll" based on his (correct) understanding that "[u]niversities are supposed to come up with new ideas, not manufacture new products. That's what companies do." And he further understands that even anti-troll champions like Hastings College of Law Professor Robin Feldman recognizes the social utility of encouraging universities to license their patented technology, because it will "encourage the commercialization of new products."
The social utility could be hampered, Mr. Nocera realizes, if the bills in Congress aimed at curtailing the type of "trolling" he disparages ends up "having huge negative consequences for legitimate inventors." Or 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." (The latter has, of course, already happened; see "The ACLU, Working for the Man").
According to Mr. Nocera, those decisions and the AIA have created a situation where "big companies can now largely ignore legitimate patent holders." And the companies doing it "don't call it stealing"; instead, they call it "efficient infringing" according to Robert Taylor, a patent lawyer for the National Venture Capital Association. The result: the big company expropriates patented technology and then has "top-notch" patent lawyers working for it to invalidate any patent asserted against it. And "[b]ecause the courts have largely robbed small inventors of their ability to seek an injunction  the worst that can happen is that the infringer will have to pay some money. Which, for a rich company like, say, Apple, [is] no big deal," according to Mr. Nocera. In Apple's case, the piece states that Apple has a policy, expressly stated on its website, that "the company can lay claim to any unsolicited [note, not unpatented] idea." He then describes the lawsuit between Wisconsin and Apple and the $234 million judgment the WARF obtained against Apple for patent infringement. But he mentions that this doesn't make Wisconsin whole, due to lost opportunity costs, stating that WARF didn't have the chance to license the technology exclusively to an Apple competitor, and in addition had to risk infringement litigation to obtain any recovery at all.
The piece ends with a reminder that bills remain pending in both the House and Senate that "will  effectively tilt the playing field even further toward big companies with large lobbying budgets" and states:
For the sake of real innovation, and in the name of the small inventor, who holds a special place in America's mythology, the pendulum needs to start swinging in the other direction.
Perhaps a measure of sanity will return to the patent law debate, if the Times Op-Ed editors saw fit to publish Mr. Nocera's column. Patentees would do well to send a copy to their Senators and Representatives in Congress, and perhaps take the opportunity to engage legislators in a discussion of these issues.
Because we can be sure that those "large lobbying budgets" are not going unspent by companies engaging in "efficient infringement."