Good Trolls; Bad Business

The IPKat noticed this piece from the IEEE Spectrum website, in which Steven Rubin, a New York IT/IP lawyer, argues that patent trolls are not necessarily a bad thing, and may actually be doing good. The general picture of a troll is a company that acquires patents and uses them against (i.e. sues) others, but has no intention of making the patented articles or processes themselves. This can, in the author's view, be a good thing, particularly if the inventor is not rich enough to afford either to market the product or to sue others. An example is given of a South Korean inventor who managed to take on Microsoft and win, but only because his invention was bought out by a company willing to take the case on.

Mr Rubin helpfully provides a new, less emotive, definition of a patent troll, being "a company that fosters innovation by providing patent marketplace liquidity".

On another note, US company AppliedE, Inc. (site under construction) has just announced via a press release that they have been allowed US and European patents for their invention titled "Professional time tracking and recouping system and software". They boldly admit:
"This patent is a business method patent that claims and protects a method of automatically recording Internet activity performed by a user on behalf of a client"
and they state that it is difficult in the US and Europe to get such patents. A quick look at the 'Druckexemplar' (the application in a form allowed for grant at the EPO) available from the EPO's epoline service reveals that the allowed method (on 1 February 2007) is as follows:
1. A professional time tracking and recouping method for tracking usage time and for creating reports based on the usage time in an Internet use environment, wherein the Internet is accessible by a user for one or more client matters, the method comprising:
receiving a logon request from the user;
authenticating the user login ID;
launching a time tracking function upon a successful user logon;
receiving URL information from the user;
recording the usage time associated with each URL received from the user; and
processing the usage time data to create one or more reports, wherein the reports are formatted in accordance with predetermined parameters,
wherein the preceding steps are performed on a personal computer of the user or a network server to be accessed by the user.
The US application (09/636,448) has also been allowed, but with rather different claims.

This Kat is not commenting further on the merits or otherwise of this claimed invention, but wonders whether this claim would have been allowed at the UK Patent Office. For anyone sufficiently interested, there is still plenty of time (at least until the end of the year) to file an opposition at the EPO.

Merpel is more worried about AppliedE, Inc. wanting to keep track of her internet usage, which is considerable.

UPDATE (18 May 2008): The 9 month opposition time limit has now run out, and nobody has opposed the patent. Will AppliedE now start taking action in Europe against alleged infringers?
Good Trolls; Bad Business Good Trolls; Bad Business Reviewed by David Pearce on Thursday, March 01, 2007 Rating: 5


  1. Providing "patent marketplace liquidity" is all well and good, but I think the concerns about patent trolls probably stem to a large extent over deeper concerns as to the patent system.

    Many US patents in particular are perceived to be of poor quality and vulnerable to prior art claims. However, the person on the receiving end of an infringement claim may not have the resources to achieve this.

    There is also a sense that, particularly in the field of software, patents are now so widespread that it is all-but impossible not to infringe a a patent if you are doing anything non-trivial. What keeps this situation stable is that the companies most likely to bring patent actions are then be vulnerable to retaliatory claims by the alleged infringers (e.g. if MS sues IBM, IBM can then no doubt find a patent of its own that MS is infringing). "Patent trolls" break the terms of this uneasy ceasefire by bringing claims against which this particular defence is not available.

    I agree though that emotive labels such as "patent troll" rarely help matters. But the term didn't come from nowhere.

  2. Concerning AppliedE's patent, the difficult question is not whether the UKPO would grant a patent (the answer is surely no) but how on earth the EPO were persuaded to.

    I've taken a look at the extraordinarily brief minutes to the oral proceedings, and if the technical problem identified isn't a joke, the idea that the claimed invention solves it in an inventive manner certainly is.

    How do Grunecker keep on getting away with it? A few days ago, the Kat posted about Amazon's 1-click being refused by the EPO, but Grunecker did get a related divisional granted without ever having a written statement on file explaining how they persuaded the EPO that there was a technical problem being solved. It's a shame the FFII made a bit of a mess of the opposition (perhaps showing their lack of understanding of EPO practice), but hopefully that patent will still get brought down in flames if the opposition division have any sense.

    As for this one, I think the EPi should seriously consider filing an opposition to it themselves - patents like this give (normally undeserved, in my view) ammunition to those who would like to see the EPO destroyed and are thus damaging to the reputation of the profession. Patents like this help promote the propaganda that the EPO rountinely grants obvious software patents when the truth of the matter is: everyone makes mistakes and, with the EPO under such scrutiny at the minute, every one is held up for public inspection.

  3. I am not sure what Gerontius is trying to argue with regard to the FFII opposition. From my reading, the opposition is perfectly admissible. The Grunecker attorney argues that the opposition was not signed by an admitted representative and is therefore inadmissible. I am sure that the opposiiton division will, if the FFII representative does not, refer to Article 134(7) EPC.

  4. The core problem being that software developers dislike the software market, which programmers are good at, being supplanted by a patent market, which lawyers are good at.

    The markets are antagonistic - an unhealthy patent market means a healthy software market (without the natural free market suppressed by patent monopolies) and vice versa. Improving patent market liquidity strengthens the patent market at the expense of the software development market.

    Of course, patent legal professionals writing blogs may welcome that, but it's unsurprising programmers don't!

    Really, at a basic level, it comes down to lawyers striving to prevent, at all costs, the emergence of a new professional discipline with a powerful lobby on a par with lawyerin' and doctorin' - programmin'.

  5. I wasn't aware that I was expressing any opinion one way or another about so-called patent trolls. I just thought it was an interesting article. This particular patent legal professional blog writer simply thinks that trying to attach simplistic labels tends to mask the complexity of real life, and is lazy thinking. Sweeping generalisations such as the above are further examples of such thinking.

  6. Three important unstated points here:

    1)Patent Trolls and the uneasy ceasefire

    The big companies are partly to blame for this because of their ip licensing model where they ignore any IP that is not accompanied by a big stick. If they would license the valid small inventor IP then a lot of these patents would not wind up in the hands of the trolls.

    2) Defendants not having the resources to defend troll enforcement

    This is an indictment of the legal system in general whereby a significant percentage of the populous has no capacity for legal representation. The only solution to this will result from the competitive streamlining of litigation related information flows (this issue is not limited to patent matters).

    3) Software patent quality

    This problem exists due to the PTO not acknowledging software's malleable nature and thus maintaining an excessively low non obviousness bar. There is noteworthy software innovation that should be patentable due to the significant research expenditures required for achievement. This higher non obviousness bar for these noteworthy software innovations would relieve the existing art coding implementations free from patent burdens once the current set of low quality software patents expire.

  7. Hello...
    This post has the same questions I asked at Philip Brooks' in his reference to this discussion.
    How easy is it to put pressure on a company that you think is infringing on your patent? (Tech invention with multiple claims involving electronics, processing) I hear that it can take millions of dollars and lots of time to go all the way with suing, but aren't there relatively easy ways to put pressure on them to settle? Or, how can I find a company that would buy (or lease?) the infringed patent in the manner noted re Microsoft, for example maybe Intellectual Ventures, "a company that develops new ideas and also buys latent patents." (Newsweek, March 12, 2007 issue) How likely to be more attracted to a latent patent that had the extra kick of infringement upon it? If it does go to court, how easy to go through the "rocket docket" court/s I hear of in N. VA (Alexandria, DC?)

  8. The easiest and cheapest way to get things going in the UK is to request a Patent Office Opinion. This costs £200, and there is little or no risk of being subject to any costs from the other side. This is a strategy adopted by Jeremy Lenighan (opinions 27/06, 24/06 and 02/05) in an apparent attempt to use the (non-binding) opinion to obtain some bargaining power with the bigger players.

  9. Thanks David. I forgot to note that this site is UK oriented. What about in USA for that question?


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