Patently Absurd - The American Spectator | USA News and Politics
Patently Absurd

Online trolls get a kick out of goading people by posting harassing, inflammatory comments on web sites.

They live to get a reaction.

Patent trolls do the same thing — only their motive is to make a quick buck.

It’s easy to do — unfortunately.

Because all it takes is an accusation of patent infringement — no matter how fact-free — to place the individual or company accused of infringement in the position of having to disprove the claim.

On their nickel.

Patent trolls know it’s less hassle — and often, expense — for a patent holder to cut a check, agree to some form of settlement, rather than litigate. Lawyers cost money — and cases often take months or even years to resolve. Knowing this, the trolls send out a multitude of so-called “demand letters,” hoping that some of their prospective victims will see it as a cost of doing business to throw the troll some money, just to make him go away.

On the flip side, trolls simply take someone else’s idea — and run with it. Straight to the bank. The same laws that make it difficult — and expensive — to defend against a spurious claim of patent infringement also make it easy for someone to exploit someone else’s idea for profit. By the time a patent infringement claim gets in front of a judge or jury, much damage may already have been done — with little, if any recourse available.

Congress had been working on legislation to get this problem under control via a bill (the Innovation Act) introduced by Rep. Bob Goodlatte (R-VA) that would — among other things — impose a “loser pays” reform similar to the British legal system’s requirement. Trolls would have to pay not only their own lawyer bills, but also the lawyer bills of their target in the event the courts found the suit without legal merit.

However, like sausage, there are other things in the bill — some of them less savory.

Among these floor sweepings, a measure tacked on by Rep. Darrel Issa (R-CA) that would continue (and expand) something called the Covered Business Method (CBM). It affects a subset of patent law covering business practices and methods, including data processing methods and management techniques relating to financial products and services. It’s arcane to laymen unfamiliar with the minutia of patent law — and because it deals with generally non-physical intellectual property such as ideas.

One particularly troubling aspect of Issa’s rider is that it would open an eighteen-month window (technically, a “waiting period”) during which time patent trolls would effectively be able to hold up the legitimate patent holder’s ability to capitalize on his idea — or the reverse — until the courts get around to sorting things out. In today’s fast-paced and extremely competitive marketplace, an eighteen-month wait might as well be a death sentence in many cases — and that’s why Issa’s rider is facing such vehement opposition from — among others — the Small Business and Entrepreneurship Council, Americans for Tax Reform, and Citizens Against Government Waste.

It’s a bedrock principle of America that those who create have a right to profit from that which they create. It’s not just a moral principle that’s at issue, either. If innovators know that anything they create can simply be taken — and used to make a buck for someone else (who did not create it) — then there’s less incentive to create anything in the first place. Would you sit in traffic for an hour, then spend eight or nine hours at the office — five days a week, years on end — if you knew ahead of time that the check would go to some random other person who stayed home eating potato chips while watching reruns of The Bachelor on TV?

Of course not.

People want to work — and create — but when their work and creative energy is exploited by others, and the law doesn’t step in to protect them (and punish those who would steal — and try to profit from — that which they did not work for or create themselves), innovation tends to dry up.

That’s the last thing America needs right now.

Which is why the next thing Congress ought to do is throw Rep. Issa’ s CBM extension/expansion in the woods.

Eric Peters
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