We need a practical answer to patent trolls. The end of the RIM-NTP patent war, on terms very favorable to NTP ($612.5 million favorable) has many people wringing their hands over the issue of patent trolls.
Carmi Levy of Info-Tech Research says this creates an open season for patent trolls to go after manufacturers and demand tribute, no matter the merit of the claim. And it puts heavy pressure on manufacturers to settle.
After all, NTP didn’t make anything. The US Patent & Trademark Office had begun a process of invalidating their patents. But a judge was also ready to close RIM network down, and destroy the Blackberry. RIM had to settle.
What we need is a process, a mandatory process that folks without products can use to test their patents against products that exist in the marketplace. It is a process that must be staffed by experts, and paid for by the litigants, as in arbitration.
The expert would decide:
- Is the patent valid?
- Does it apply to this specific invention?
The real question is, how do we fund this process? Patent trolls have no money, and will not pay. Their lawyers are working on a contingency basis. And manufacturers should not have to pay into a fund on the off-chance they might be targeted.
The alternative is to let these things be decided by people without technical expertise — and most judges worth their robes will admit to that — or to dramatically increase the budget of the Patent Office and charge people enormous fees to make patent applications, which burdens those whose real inventions fail in the market, and may discourage individuals from applying.
So how about this?
- If you don’t have a product, and are suing someone who does have a product, you pay a filing fee to the patent office.
- If you have a product, and want to avail yourself of this arbitration group’s work, you pay a portion of the invention’s sales into the fund as "patent insurance."
Someone who has "patent insurance" could force someone suing them into the process. Someone without a product would pay a fee, go through the process, and know (without the expense of lawyers) whether they have a case — the end (if favorable) would be not only a chance to settle, but a basis for settlement.
Until we get expertise on this case, American innovation is at risk.
