Well, that’s the title of yet another article I came across — this time in The Motley Fool — that intentionally or unintentionally spreads lies, untruths and disinformation about the patent system. I’m shocked and outraged. Think of the possible effect on our young people. (Our young people!)

I’ve been around long enough to be a bit skeptical of coincidence, particularly when it seems to benefit moneyed interests. Is it just coincidence that all these articles denouncing “abuse” of the patent system just happen to coincide with the Senate’s consideration of “patent reform”? Hmmm….

Check this out: “But even a system put in place to regulate and encourage fair business and innovation can be manipulated to suit unintended purposes — with destructive outcomes.” Last I checked, Article I, Section 8 of the Constitution speaks of “promot[ing] the progress of science and useful arts,” not “regulating and encouraging fair business.” And it speaks of doing so “by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,” not, as the author of this article claims, by “businesses us[ing] patents and copyrights to protect their intellectual ideas as a defensive moat.” Call me old-fashioned, but I still think it’s important — and even helpful — to go back to basics once in a while and see what those who set up this country actually had in mind. The Constitution speaks of “authors and inventors” not “businesses” (there is a difference). And it speaks of “securing for limited times…the exclusive right to their respective writings and discoveries.” Now tell me again, where is the constitutional basis for the idea that patents are meant only to protect those in business and are only intended “as a defensive moat”?

The author goes on to say, “Often, these organizations [i.e, patent terrorists] purchased the patents or swallowed companies that were going under to acquire the ideas, which is called patent trolling.” Let me get this straight — going out into the open market and “acquiring the [patented] ideas” of a failing business is somehow wrong?

Twenty-something years ago, I made a minor killing by acquiring stock in Chrysler Corporation. This was at a time when Johnny Carson was making jokes (“How cheap was it?” “Cheaper than Chrysler stock!”) and “informed” investors said they wouldn’t touch Chrysler with a ten-foot pole. Coming from an author writing in a publication for investors, I find it strange that the author of this article can’t see the parallels between investing in a troubled business and paying one’s hard earned cash for patents that might indeed be worthless. Isn’t reward for having vision and taking risk what it’s all about? Can’t an investor, of all people, see this? Apparently not if you’re on the other end of the deal.

Finally, I got a kick out of this line: “Yet there is definitely a code of conduct for the licensing of innovative ideas here in the U.S., and patent terrorists often cross this time-honored line.” Having been on the other side of patent disputes for over twenty years, I am well-acquainted with this “code of conduct.” I know all about this “time-honored line.” That’s largely why I now think individuals and smaller businesses deserve a chance.

The supposed problems with the patent system are for the most part created by big business itself. It’s not the individual inventors and smaller businesses that stretch patent litigation over several years and run up millions of dollars in legal fees. It’s not the smaller inventors and businesses that elect “to leave no stone unturned” in their pursuit to avoid a legitimate patent claim. (Despite stories to the contrary, weak patent cases are quickly and routinely tossed out on summary judgment.) And it’s not the smaller inventors and businesses that have the deck stacked in their favor. Far from it. Big business is and always has been the primary beneficiary of the patent system. The cries we hear now are not those of innocents “victimized” by an unfair system. Rather, they are the cries of those who don’t like finding out they’re expected to follow the laws and live under the same system they have mostly created themselves. Some call that unfair. Others call that justice.

Print:
Email this postTweet this postLike this postShare this post on LinkedIn
Photo of Philip P. Mann Philip P. Mann

Philip P. Mann is a trial lawyer with over twenty years experience litigating patent, trademark, trade secret, and other intellectual property matters throughout the country.
Mann’s trial work has taken him to various federal and state courts where he’s tried both cases to…

Philip P. Mann is a trial lawyer with over twenty years experience litigating patent, trademark, trade secret, and other intellectual property matters throughout the country.
Mann’s trial work has taken him to various federal and state courts where he’s tried both cases to the court (a judge) as well as before juries. In addition to trial court work, Mann has performed appellate work before the United States Court of Appeals for the Federal Circuit.
Mann began his legal career in Chicago and Milwaukee before heading to Seattle where some of America’s most innovative companies were developing new technologies at breakneck speed. Before founding his own firm, he was a member of the Seattle Intellectual Property Law Firm, Christensen O’Connor Johnson Kindness.
Mann is an “AV” rated lawyer by Martindale Hubbell, indicative that he has reached the height of professional excellence and is recognized for the highest levels of skill and integrity.
He holds a degree in Electrical Engineering from the University of Illinois (Urbana) and received his law degree from the Washington University School of Law in St. Louis, Missouri. He is admitted to practice in the States of Illinois and Washington, as well as before the United States Patent and Trademark Office, and in various courts around the country.