Defense of today’s patent system can be a difficult job. At its best, the system can encourage innovation, protect the sacred rights of inventors, and do it highly effectively. At its worst, it falls prey to loopholes and day-to-day issues that make it fertile ground for abuse and negligence. Not to mention, it arguably is reliant on one of the least competent regulatory agencies in the entire federal bureaucracy and sometimes seems to provide more protection to trial lawyers, university administrators, and other infamous sucklers at the rent-seeking teat than it does to actual inventors.
Small wonder, then, that those trying to defend the system in an unreconstructed form usually resort to accusing their opponents (falsely) of being against patents, or even intellectual property altogether, as if this is a debate over first principles, rather than what sort of system can best serve those first principles, and how to tweak the current one in pursuit of that.
However, say this for the patent system’s most strident defenders: A good number of them do seem to care deeply about the first principles in law and policy they purport to champion. Sadly, this often fails to ennoble them, rather reducing them to unwitting apologists for people who share none of their deeply held moral, legal, or political views.
Why? Because the people who benefit most unjustly from the present patent system lack principles entirely. I refer to non-practicing entities (NPEs), known colloquially as patent trolls, a group of firms that exist purely to register patents and then accuse actual inventors of violating them, all while demanding that people who actually invented the things they claim to have patented should pay them for the privilege of doing what they were unable or unwilling to do. In other words, this is an industry that makes its money through the sleaziest mix of nuisance lawsuits, legal intimidation, and pervasive disingenuousness.
However, to a certain species of legal academic, these sorts of concerns are irrelevant, provided the people in question are asserting legal rights they actually possess in the legally proper way. In other words, if they’re playing by the letter of the rules, the constitutional commitment to innovation in “science and the useful arts” can be brushed off as an incidental guideline. Unfortunately, even by that ludicrously low standard, patent trolls simply fail to justify their existence.
Witness the recent pathetic example of the failed lawsuit by Rothschild Connected Devices Innovations LLC (RCDI) against Garmin International, reported on aptly by Ars Technica here. There is much to be said about the suit, but for our purposes, the most relevant fact is this: After RCDI filed its claim of patent infringement against Garmin, Garmin’s lead counsel sent them back a letter explaining that the patents they were claiming were not legally valid and were, in fact, in violation of U.S. patent law. You would expect someone with an actual legal claim to respond in kind, but not RCDI. They simply went dark and then withdrew the suit entirely shortly thereafter.
And frankly, they should have, because one of the more stunningly batty claims the company was relying on was the idea that they had intellectual property rights over data mixing — rights that originated with their patent for an alcoholic drink mixer. Yes, that’s right, according to RCDI, mixing yourself a Scotch and soda is the exact same concept as pairing data on your iPhone. Still, at least they saw the idiocy of this and their other claims and withdrew in order to revise their complaints in good faith, right?
Wrong. As of this writing, RCDI has continued filing lawsuits for infringement of the same flawed, invalid patents long after effectively conceding that they were invalid when their bluff was called by Garmin (along with most of the tech press, which has repeatedly mocked at least one of the so-called “patents” that RCDI claims to possess as utterly unenforceable). To put it bluntly, they know they’re wrong but are filing suits anyway because they know not everyone will be able to actually pony up for a lawyer who can see through their BS.
It should go without saying that this sort of nihilistic legal strategy is morally reprehensible. But more than that, it drags defenders of the patent lobby through the mud in its wake. Those defenders often suggest, for instance, that critics of the patent system are simply seeking to allow large companies to exploit small inventors by infringing their patents with no legal recourse. Yet who do they imagine is most likely to fall prey to companies like RCDI, whose strategy of intimidation obviously relies on their targets not being financially willing or able to spend money on lawyers? Obviously, the very sorts of small businesses and less powerful people that are supposedly “protected” by our patent system! By what moral calculus can the financial pain and regulatory uncertainty inflicted on those people by predatory, lying legal trolls be justified as an excuse to protect purely hypothetical future inventors laboring in their garages who might be victimized by “efficient infringers” — hypothetical victims whom the patent lobby has yet been unable to produce?
Certainly, some ideological clusters might dismiss such concerns as irrelevant to questions of principle. And they have the right to do so. But if they imagine the people who they are helping care one jot about any principle, they are casting the pearls of their intellectual engagement not just before swine but on behalf of swine. That kind of naïveté drastically limits their credibility and cheapens their principles by association for no good reason, and it’s time they took a hard look at whether it’s really worth it to endure that cheapening on behalf of some of the cheapest bottom feeders in the legal system.