Patent trolls never give up trying to come up with some new angle.
The tide of public opinion now having decidedly turned against patent trolls, panic — if not moral embarrassment — seems to have struck home. As a result, trolls have shifted from trying to block reforms of the patent system to a more subtle approach: namely, complaining about arcane elements of the current patent regime in the hopes of generating sympathy among lawmakers and the public.
The cause du jour that so far has only gotten attention on legal blogs is the argument that it is too hard to amend a patent once it’s been challenged in the Inter Partes Review (IPR) process. And if that last sentence made your eyes glaze over, let me explain it in layman’s terms.
The IPR process is a means by which participants in patent lawsuits can ask the Patent Trial and Appeal Board (PTAB) to take a second look at a patent if they think it never should’ve been granted in the first place. The PTAB is itself a subsidiary of the U.S. Patent and Trademark Office (USPTO), so this role is quite appropriate to it, the disingenuous complaints about the process from special interests like Big Pharma notwithstanding. Normally, patent holders will simply argue their patent is valid in response to a challenge like this. But sometimes, if the patent is so obviously absurd in its vagueness or broadness that no defense is possible, they’ll ask the USPTO to let them amend the patent after the fact to encompass a narrower invention, in the hopes of preserving that patent. Their complaint is that such amendments are far too difficult and lead to many patents being invalidated when they should only be tweaked.
And it’s a reasonable case until you realize that, for the purposes of preventing trolling, the difficulty of this process is a feature, not a bug.
Here’s why: Patent trolls thrive on vague or overbroad patents because these enable them to threaten lawsuits against almost everyone, while also demanding relatively paltry settlement fees that are far easier to pay than the fees associated with a costly court battle. On the off-chance that anyone ever takes their dubious patents into an IPR process, of course, the patent holders (if not their lawyers) would have every reason to amend the patents to actually make sense. The problem is that up until they get dragged before the PTAB, they’ll have already used the vague version of their “patent” to troll some unspecified amount of innocent innovators. It is only the fear of losing a patent entirely that can stop trolls from simply registering intentionally vague patents in the hopes of extorting as much money as possible before being eventually forced to “amend” them, if ever.
In other words, unfair though it might be to some people that they either have to describe their invention in the most legally limited language possible from the get-go, or risk losing their patent, it’s also the only thing that keeps virtuous patent holders honest, and keeps the less than virtuous in check for fear of utterly losing the patents they register. Remove that harsh penalty and the PTAB loses any capacity to put the fear of God in patent holders whose sole purpose is to extort money from innovators.
Of course, this is precisely what trolls want, which is all the more reason that the complaints about the process should be politely and firmly ignored. It is the patent system’s rampant incentives for abuse that need reform, not one of the few mechanisms that makes that abuse less likely and, indeed, less profitable.
And whatever your feelings on the fairness of treating confused patent holders as collateral damage, it should be obvious that people who lie about what their patents cover, or try to make them all things to all people, deserve to be slapped down in court. Only a toady for trial lawyers — and trolls — would pretend otherwise.
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