Wednesday, September 27, 2006

More on patent trolls

Further to the discussion of patent trolls, Caroline Horton Rockafellow writes

If the definition of a patent troll is one who seeks to enforce a patent but has no intent or ability to manufacture or commercialize products that would infringe such patents, then patent trolls would include research institutions, universities and all companies that focus solely on research and development. Since innovation is generally regarded to be a desirable thing, and in fact the entire premise behind Article I, Section 8 of the U.S. Constitution, which provides that Congress shall have the right “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,” it would not make sense to limit the activities of these institutions or their ability to secure and enforce patent rights. In fact, these institutions are generally not considered to be included in the definition of a patent troll. So, if a university with no intent or ability to commercialize a product chooses to enforce such patents, why would they not be included in the definition of a patent troll?

IPBiz notes that "disclosure of invention" is the concern in the Constitution, not innovation. Innovation is NOT the entire premise behind clause I,8,8.

Rockafellow writes further:

The general consensus by those that wish to limit the activities of patent trolls is that trolls are entities and individuals whose sole business model is focused on collecting patents for the purpose of extracting license fees from product manufacturers. The argument is that the companies that invest in the development and manufacture of products are being held hostage by patent trolls with patent rights that cover the products under development. Again, the argument seems reasonable, but does require further analysis.

IPBiz asks: what was the University of Rochester doing in the Celebrex case? what is Ariad (with Harvard and MIT) doing in the Lilly case?

Rockafellow also writes:

So the issue really comes down to whether it is fair to have legitimate business with commercial products put at risk by being forced to deal with patent trolls either by defending lawsuits or by paying large license fees. On the one hand, it certainly does not seem fair that a business that has developed technology and expended the time and effort to commercialize the technology should be held hostage by a company with no products to offer the public. Yet, that is not the right that the Constitution grants. The Constitution gave Congress the right to promote science by securing exclusive rights in inventions. It is not a grant to the company that has the best ability to provide the best product to consumers, even if that is what would provide the greatest value to consumers. Ultimately, we do not want a situation where good products are kept from consumers or where companies that invest heavily in technology development are restricted from benefiting from that effort because of a prior patent right.

IPBiz notes: the whole point in an "incentive to publicly disclose" system is that members of the public, especially competitors, will read what is disclosed and then act accordingly and appropriately. No business should expend time and effort without first having read relevant publicly disclosed information.


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