Feed­ing the trolls

An ap­peals court threat­ens ‘the Progress of Sci­ence and use­ful Arts’

The Washington Times Daily - - Editorial -

Gov­ern­ment patent ex­am­in­ers are over­whelmed, which is the only ex­pla­na­tion for some of the patents they grant. U.S. Patent No. 5,443,036, for ex­am­ple, pro­tects the “in­ven­tion” of us­ing a laser pointer to ex­er­cise a cat. U.S. Patent No. 7,171,625 pro­tects dou­ble-click­ing on a mouse. Even the online Web mer­chant Ama­zon has a patent on the “one-step process” of buy­ing with an online shop­ping cart. Some­thing is ob­vi­ous, of course, only af­ter some­one else thinks of it.

The ease with which the “dis­cov­ery” of such ob­vi­ous ideas can be con­verted into a legally en­force­able, ex­clu­sive right has cre­ated the patent troll. Trolls have learned how to game the sys­tem, some­times grow­ing ex­tremely wealthy with­out cre­at­ing a sin­gle use­ful thing. All they need do is ob­tain a patent on some­one else’s idea, sue a pro­duc­tive com­pany and col­lect mil­lions when the pro­duc­tive com­pany set­tles out of court to avoid a more costly court chal­lenge.

The courts should take out a patent on how to en­hance ab­sur­dity and make bad things worse. Lawyers are our most in­no­va­tive cit­i­zens. For ex­am­ple, Aka­mai Tech­nolo­gies, which says it de­liv­ers 30 per­cent of all In­ter­net traf­fic, sued Lime­light Net­works over what it says was an in­fringe­ment of its patent on how bet­ter to do that. Aka­mai claims that a Lime­light process for rapidly load­ing online videos in­fringes Aka­mai’s own patented process. Two lower courts dis­agreed, but on re­view, a nar­row ma­jor­ity of the U.S. Court of Ap­peals for the Fed­eral Cir­cuit in­vented a le­gal doc­trine to de­clare Lime­light an in­fringer.

Six of the court’s 11 mem­bers cited an en­tirely new doc­trine they call “di­vided in­di­rect patent in­fringe­ment,” which is as com­pli­cated as it sounds. They ruled that a com­pany can be made re­spon­si­ble if some­one out­side the com­pany’s con­trol does the “in­fring­ing.” If there’s a laser pointer in a pet store, the store can be held li­able if a walk-in cus­tomer picks it up and ex­er­cises a kit­ten with­out first pay­ing roy­al­ties to the holder of the cat-ex­er­cise patent. This sounds, to a lay­man, nuts.

The dis­sent­ing judges in the Aka­mai case ap­par­ently think so, too. “It has no foun­da­tion in statute,” wrote Judge Pauline Newman, a Rea­gan ap­pointee, “or in two cen­turies of prece­dent.” Judge Richard Linn, a Clin­ton ap­pointee, ac­cused the ma­jor­ity of leg­is­lat­ing from the bench. “In its opin­ion to­day,” he wrote, “this court as­sumes the man­tle of pol­i­cy­maker ... it [has ab­di­cated] this court’s obli­ga­tion to in­ter­pret con­gres­sional pol­icy rather than al­ter it.” Mil­lions of dol­lars have been spent in court by both com­pa­nies in ar­gu­ments over the pre­cise mean­ing of “tag­ging of em­bed­ded ob­jects” with­out any ben­e­fit to the pub­lic at large. This is an ex­am­ple of how the patent sys­tem has lost sight of the con­sti­tu­tional prin­ci­ple that patents ex­ist “to pro­mote the Progress of Sci­ence and use­ful Arts.” It’s not to en­rich lawyers.

The so­lic­i­tor gen­eral must urge the Supreme Court to take up Lime­light Net­works v. Aka­mai Tech­nolo­gies to pro­tect in­no­va­tion and set clear in­fringe­ment bound­ary lines in patent law. If the ap­pel­late rul­ing stands, it will be even more dif­fi­cult for in­no­va­tors to know whether they’re on the right side of the law be­cause they have no con­trol over what oth­ers might do.

Patent re­form is high on the list of pri­or­i­ties for Rep. Bob Good­latte, chair­man of the House Ju­di­ciary Com­mit­tee, and a good thing, too. Congress can stop the feed­ing of patent trolls by re­vis­ing the rules to fo­cus on en­cour­ag­ing use­ful prod­ucts, not to en­cour­age the cre­ative le­gal the­o­ries of lawyers and judges.

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