The America Invents Act's Patent Reform Might Strengthen Patent Trolls

http://www.litigationandtrial.com/2011/07/articles/attorney/patent-infringement/the-america-invents-act-and-patent-trolls/

by grellas • 15 years ago

21 3 15 years ago

litigationandtrial.com

dexen• 15 years ago

There is a recent article by PIA: http://truereform.piausa.org/ where they claim mostly the same.

tzs• 15 years ago

His argument makes no sense. The argument is that the Act might make it more expensive to get a patent (because it makes it easier for third parties to make the patent go through extra review). Small entities might not be able to afford that, so might not get as many patents, whereas large or well funded entities will be able to afford to go through the process. He gives Intellectual Ventures as an example of a large entity that will be largely unaffected by this.

First, he's wrong that IV will be unaffected. True, they can afford the cost of extra review, and so if all the extra review did was raise costs then they would be unaffected as far as their ability to get patents goes. However, that's not all the extra review does. The extra review will also cause some patents to be rejected that otherwise would have been issued. That will affect everyone who tries to get patents that are not novel or non-obvious to one skilled in the art, regardless of their size and ability to pay for the more costly procedures.

Second, even if the Act merely weakens small trolls, and leaves larger trolls untouched, that still has overall weakened trolls. No patent troll is strengthened by the Act.

Third, most troll patents come from small entities. The large trolls buy most of their patents from small entities or individual inventors. IV does do a significant amount of original research and gets patents on it, but those only comprise a few percent of their portfolio.

MaxwellKennerly• 15 years ago

Bear in mind that Congress hasn't done anything to change the types of things that can be patented; under the Act, the patent for thermal refreshing of bread would still be appropriate. Software patents are still all the same.

The critical part there is how, as you noted, "most troll patents come from small entities." Raising the cost and time of obtaining a patent will have only a modest effect in stopping people from attempting to file for these weak patents, but will have a major effect in compelling them to assign the patents to larger, better-capitalized entities with greater capabilities in pushing the patents through the process, like IV.

It is counterintuitive. I wouldn't have thought this would be the result had I not seen the same thing happen in securities litigation: Congress attacked the nuisance suits and ended up making the biggest securities law firms far stronger and more profitable. Counterintuitive, but demonstrated empirically in another field.

The America Invents Act's Patent Reform Might Strengthen Patent Trolls

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