Patent reform is back on the agenda in Washington and, like most legislation debated on Capitol Hill, one needs to be wary of vested interest masquerading as principled argument.
Recently, Michelle Lee, Google’s Head of Patents and Patent Strategy, posted her thoughts on why patent reform is needed. It included these insights:
“Consider this: Of the 20 patent lawsuits filed against Google since late 2007, all but two have been filed by plaintiffs who don’t make or sell any real product or service — in other words, by non-practicing entities or ‘patent trolls.'”…All too often, Google and other companies face mounting legal costs to defend against questionable patent claims from speculators gaming the system to reap windfall profits.
But what are the principles underpinning Lee’s comments? Is it that the value of property should be hinged on its owner’s intended use? If so, then by extension, shouldn’t:
- Anyone who owns shares in a company without directly participating in its operations,
- Anyone who rents their rural property to a tenant farmer rather than cultivating it themselves,
- Anyone holding a cab license who doesn’t operate the vehicle themselves
be considered a “non-practicing entity” and therefore deserving of a legislative intervention to redress any “windfall profits” resulting from their “gaming the system?”
Let’s be clear that Lee’s views are commonly held across a broad spectrum of the IT industry. But it’s a little too convenient for my liking. Crafting this dichotomy between a good patentee (I make and sell real products and services) and a bad patentee (they don’t) is a convenient way to justify building and exploiting a patent portfolio while deriding others for doing the same thing.
If this was simply an issue of name calling – which it’s been up to now – than it really doesn’t matter. But this is being used as an argument to lobby Congress for changes to patent law. These changes specifically seek to limit damage rewards for infringement. In this case we can all expect a little more principled reasoning than is currently on offer. For example:
- To what extent is a “non-practicing entity” in the business of speculating as opposed to seeking rents? How do you logically quarantine such activities from those applied to other forms of property?
- Is there a difference when a practicing entity licenses a patent to a 3rd party and when a “non-practicing entity” does the same thing?
- How do you support your assertion that “non-practicing entities” are gaming the system? Haven’t they obtained their patents through the same process you have?
I’d welcome any insights that Google, Michelle Lee, or others can offer.