Monday, March 06, 2006

"Troll Call" in Wall Street Journal on March 6, 2006

Bruce Sewell, GC for Intel, has an op-ed piece "Troll Call," in the March 6 WSJ wherein he states darkly of the NTP/RIM litigation: "Unless the courts or Congress do something to stop this kind of gamesmanship, we're only going to see more cases like this."

Sewell offers his definition of a patent troll: Trolls acquire and use patents just to sue companies that actually make products and generate revenue. What Sewell calls companies that use patents of others to make products and generate revenue wasn't clear. Are they called patent infringers?

Sewell is distressed. The distressing part of this picture is that RIM's contribution of complementary technologies, business acumen, product R&D and marketing is what "enabled" the NTP invention to achieve commercial relevance. Mr. Sewell should note that inventions are about disclosure of information. Not about commercial relevance. Inventors who have inventions and businessmen who want to innovate are supposed to make deals. The patent system gives an inventor a bargaining chip, but the people involved are supposed to be rational dealmakers. Mr. Sewell complains that the power of the injunction amounts to "Pay me a lot or lose everything."

RIM went into business without properly evaluating the patent landscape. They didn't hit upon good invalidating prior art until after the litigation was over. This was not careful planning. Because RIM didn't properly deal with the patent system, and ended up "back to the wall" doesn't mean the patent system failed. They lost at district court and they lost on appeal (no injunction applied in the interim), and they got to a point where the patent was found valid, RIM infringed, and exceptional circumstances don't include BlackBerry use in the US by 3 million rich lawyers, businessman, and CrackBerry addicts. [Government workers were going to be exempted by the injunction]. What did any rational person think was going to happen?

Sewell blames the courts. Things got lopsided in the world of patent litigation not on account of the patent statute itself, but from case law, (...) One thing that isn't in Sewell's op-ed is an argument about patent quality, or a reference to the peanut butter and jelly sandwich patent of Smucker, or the warp-drive engine, or IBM's patent on airplane restroom reservations. There is a reference to eBay v. MercExchange, but not to eBay's use within eBay's brief of the grant rate numbers of the first Quillen and Webster paper. And there's another thing not in Sewell's op-ed: what happens to inventors when/if the permanent injunction right is watered down?


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