Wednesday, May 25, 2005

Law review article on patent trolls

We now have: Troll or no Troll? Policing Patent Usage with an Open
Post-Grant Review, 2005 Duke L. & Tech. Rev. 9.

Sadly, the article was obsolete by the time it appeared. It discussed JGR as a trolling event, when it in fact was not (see earlier post about Novell on IPBiz). From the article:

This type of enforcement--potentially a case of patent trolling--may have been JGR Acquisitions Inc.'s (JGR) goal when it purchased Commerce One's patent portfolio. Commerce One was founded in 1994 and its focus was on developing electronic commerce software applications.

The proposed remedy to trolling is somewhat silly:

P19 In order to prevent patent trolls from deterring innovation and
protect legitimate patent enforcers, an open post-grant review should be available as an alternative to costly litigation. Patent trolls should be unable to capitalize
on market uncertainty by allowing others to unknowingly develop
infringing technologies while waiting in the wings to subsequently appear and extract licensing fees. At the same time, as demonstrated in the previous section, a patentee should be able to sell his patent rights in certain situations and the
purchaser should be able to enforce the patentee's rights. The best way to achieve this balance is to introduce legislation requiring the PTO to conduct an open review of a patent whenever a patent is renewed or sold.

[The "open review" discussed by the FTC and NAS is an opposition proceeding within a certain time after the patent ISSUES.]


Post a Comment

<< Home