Today the barons of big tech meet at the White House with President Trump whose understanding of their work and how that work bears on our present global economic leadership and security in this new digital information age is doubtful. But at least he appears to be uncontrollable. For more than a decade tech titans have been dominating our Congress, federal agencies and Supreme Court by spreading their poisonous anti-patent troll narrative among DC patent policy makers. We were reminded of this last week when the “patent troll narrative” (now lingua franca in all Capitol Hill patent discussions) surfaced in a House Judiciary Subcommittee meeting held to examine the impact of on the patent landscape of the Heartland venue decision. Rep. Issa oiled his way through various iterations of the stale troll narrative. He even sniffed about a recent patent suit against Apple. Pro-patent interests had one friendly witness in the person of Adam Mossoff, but the rest were members of the anti-patent chorus led by anti-patent apparatchik Colleen Chien.
Like certain Justices, House members Nadler, Goodlatte and Issa seem shamelessly transfixed by the troll narrative’s trope that our patent system is being destroyed from within by the abusive conduct of patent trolls, when in fact they are destroying it themselves. We hope the same narrative will not be replayed at the White House today. But it is very much alive in key congressional circles. It is equally clear from House Committee bloviating they want to keep it alive in case an opportunity arises enabling them to revive their tech-dictated Innovation Act. They are telling us that any bill that mentions patents will become a House vehicle for their Innovation Act “modular adjustments.” Big Tech’s congressional tub thumpers have waited for years to tack them on as amendments.
What is becoming scary, however, is that we are in the early stages of two tectonic world developments—the new Information Age and the rise of China as a superpower. Our patent system is being destroyed by the troll narrative and its impact on patent policy makers who are themselves destroying it. China is strengthening its patent system with the same dispatch deployed to stake its claim to the South China Sea and fill the Far East trade vacuum ceded by US PP abandonment. We are headed towards a dual superpower world in an evolving digital age. If our patent system cannot cope with the economic and defense demands needed to maintain leadership, China’s patent system will. If our Congress cannot understand what lies ahead, we have to hope our President does.
Continue reading China’s Patent Ascendancy is Helped by House Judiciary.
As we approach this month’s end, please consider reading and saving a revealing and credible May post by IPWatchdog regular Steve Brachmann. Linked below, it recounts a recent Washington DC presentation by former Cisco CTO Charles Giancarlo in which as an ex-Cisco insider he presented the facts and laid bare the truth behind the false patent troll narrative still distorting the views of DC’s policy makers. Beneath his post’s headline, Brachmann summarized his presentation by quoting Giancarlo’s revelation of the truth, “Let’s call patent reform for what it is: a blatant economic power grab by tech firms to infringe on technology created by others.”
Giancarlo’s presentation persuasively supported this rare admission, opening with a quote by Sen Durbin during an early May Senate hearing on patents praising the efficient infringer lobby’s false “patent troll” narrative by saying: “Whoever came up with that phrase should get a special bonus because they manage to mischaracterize anyone who goes to court to assert patent rights as a troll. What I came to understand was one man’s patent troll was another man’s assertion of a patent right which they fought for and worked for years which is now being infringed upon by some giant.” Combining insider knowledge with relevant data Giancarlo explained why the Senator was correct.
Giancarlo noted that the infringer lobby’s “proposed solutions don’t even address the false narrative.” His data-backed refutations of the efficient infringer lobby’s “alternative facts” were compelling.
Continue reading The Truth Behind the False Patent Troll Narrative
In his World Property Day post, IPWatchdog’s Gene Quinn predicts continued but not permanent decline for US patents after naming its three top contributors. His typically insightful prose pulls no punches and IMHO correctly identifies the decline’s legal culprits and their consequences. But in IMHO he fails to give due credit is to the influence of the ubiquitous Patent Troll narrative created first at Intel then brilliantly injected into the minds of congressional, SCOTUS and PTO lawmakers. Propagated by unsubstantiated law journalists’ speculations, bogus economist projections, misleading falsities to a lazy, uninformed press, occasional anecdotes and the over-anxious suspension of disbelief accorded to the Silicon Valley vanguard of the Information Age, its self-serving shiny object distraction penetrated DC policy top of mind. Its “litigation crisis” theme delivered it to sympathetic Judiciary Committee salons, an under-informed Supreme Court and a politically pliable PTO. Fueled by Amici blather Justice Kennedy’s injection of trolls into eBay blessed it. PTAB was presumably established to curb trolls. Mayo’s expedient nullifications based on expanded eligibility grounds reflect the story’s so-called “bad patents” allegedly wielded by patent trolls. The patent troll narrative was conjured to protect the efficient infringement that compelled the cut-throat competitive smartphone markets. Indeed, efficient infringement inevitably helped create them. The troll story masked efficient infringement and perpetuated because it has worked so well and will be needed still. Mega-tech wars among big tech peers may someday shift to cars and IoT. But big tech’s need to push down patented component costs and infringe their patents will remain. The troll narrative was an early avatar of alternative facts and fake news. It will be hard to extinguish. But until the troll story is snuffed out by targeted legislation and thoroughly debunked by public disbelief, today’s decline in patents will continue. Yesterday offering “the other half of the story” the US Chamber of Commerce issued a statement strongly supporting our economic need for strong patents saying:
“Over the past decade, a growing number of academic and industry researchers have been exploring the relationship between patent protections and innovations, particularly as it relates to technology startups. What they continue to find is that patents and other intellectual property protections are absolutely vital to supporting innovation; in fact, many of the technologies and innovations we take for granted today would never have come to bear without patents.”
Donald Trump Jr. has just weighed-in on our issues with an op-ed indicating understanding of the “troll issue”, its misleading recent publicity ramp-up by big tech, and its use by big tech as a way to eliminate the patent rights of small patent holders. No one denies that litigation abuse like other “stuff” happens, but all patent assertion is not patent trolling, all defendants are not efficient infringers but litigation is the only way to force efficient infringers to respect patent rights. It is encouraging to see someone so close to the president understand the complexity of IP issues and their importance to our economy issues. Continue reading Donald Trump Jr. and Patent Trolls
Despite recent FTC’s disapproval of its lobbyist use on the Hill, CES dedicated an entire panel last week to “patent trolls”, combining high praise for USOTO Director Michelle Lee with candid commentary from “surprise” visitor (and Lee supporter) House Judiciary IP Sub-Committee Chair Darrell Issa. Mr Issa HR 9’s sponsor and chief congressional tub-thumper last session. Hoping to hide efficient infringement by resuscitating the tired troll “issue”, the panel’s prominence warns us; that Mr. Issa is still smarting from HR 9’s demise last session, that he blames its defeat on universities and BIO, that HR 9 will return this session in “modular” form, and that university “troll-like behavior” is in his crosshairs. A “rough transcription’ of his remarks ( see below) has been recently circulated among pro-patent advocates. It was forwarded by Dave Winwood. Continue reading Rep. Issa Publicly Addresses Future Patent Troll Legislation Last Week
At every year’s end IP Watchdog’s Gene Quinn asks “IP Insiders” to comment on important patent developments during the prior 12 months. This year’s patent section is linked below. Its collective commentaries summarize important 2016 developments affecting the future viability of research university commercialization. Significantly, every setback to the protracted sequence of commercialization is felt most acutely at its earliest stage of TT where uncertainty, financial risk and market unknowns are greatest. Our response to Gene’s invitation is attached below. Continue reading End of Year IPWatchdog Commentary
Kindness of Adam Mossoff, here is a useful IPWatchdog essay by CPIP Senior Scholar, Professor Kristan Osenga.
Professor Osenga explains why the FTC’s recently released Patent Assertion Entity (PAE) “study” will do more harm than good because of; its small sample size and selection bias, its arbitrary categorization of patent licensing companies, and its unsupported and unjustified policy recommendations. The entity definitions within the report are nevertheless important because they define its subject matter and thus the scope of its recommendations. The FTC dismisses the term, “trolls”, distinguishes NPE’s from PAE’s the divides the latter into two types sub-classifications. Continue reading The FTC’s PAE Study: Doing More Harm Than Good
A New York Times (NYT) article last week projected the economic growth policies likely to be supported by President Clinton if elected. It references a recent speech by Jason Furman who currently chairs President Obama’s Council of Economic Advisors. We expect him to influence Clinton administration execution of her commitment to close the “inequality gap”. Continue reading Will Zombie Patent Trolls Haunt the Hill in 2017?