In the wake of Jon Stewart and Stephen Colbert leaving their respective shows on Comedy Central for newer pastures, John Oliver has emerged as a new beacon of political humor and satire. If you haven’t watched his show, and especially if you considered the former two as having an obvious political slant, you should check out Last Week Tonight on HBO. His shots get fired everywhere.
On this week’s, John Oliver took a shot at the patent system, particularly patent trolls:
I don’t know who looks worse out of Oliver’s segment – trolls or trial lawyers. Or maybe Mark Cuban since he never seems to ask about patents. Until this segment, I didn’t take note of how often Shark Tank uses the lack of a patent as a reason for rejecting a business idea, but I digress.
As Oliver’s comments make clear, there certainly is room for improvement to correct the litigation flaws created by so-called “patent trolls” – a hotly discussed topic lately in many business, law offices, blogs, and legislatures.
Much of the discussion of the “patent troll” surrounds how exactly a “patent troll” is defined. Some refer to patent trolls as “non-practicing entities,” and others to “patent assertion entities.” These sound in the media like lazy, menacing, evil, money-grubbing corporate shells waiting for their crossing fee from under the bridge – and surely there are some of those. But that “patent troll” definition can also appear as an independent inventor who doesn’t make, use, or sell his invention. Maybe that inventor’s idea was stolen by another company that now makes, uses, or sells it. Before filing a lawsuit, he may set up a corporate entity to hold the asset to help protect him from personal liability or fund the litigation. Patent litigation is expensive and shouldn’t that right be afforded to everyone? Otherwise wouldn’t the Apples and the Samsungs be the only ones skating in the rocket docket of Marshall, TX? We need to think very carefully about how we define “patent troll” before we try to make it unjustly hard for so-called trolls to litigate.
The major “troll” examples identified in Oliver’s segment – a patent that underlies the technology in every Android app and patents for copying – are technology that has become so woven in the fabric of our everyday lives that targeting people for making, using and selling a patented invention seems to the general public as utterly ludicrous. And I don’t blame them. In the trademark realm, we don’t allow the enforcement of trademark rights where the mark has become generic and therefore lacking in its ability to identify source. Aside from defenses of laches or prosecution history estoppel, patent law doesn’t have a similar provision that protects such generally known ways of doing something from being asserted against others for making, using or selling the patented product. But does it need something like the concept of genericide?
One way of resolving the issue may be to take from the model of trademark law – the Declaration of Use filed at the 6th anniversary of registration and then with the renewal every 10 years after the registration date. This Declaration of Use requires a statement that use is continuing and providing a specimen showing use (and of course, a fee). Patent law has maintenance payments that are required only for utility patents at 3.5 years, 7.5 years, and 11.5 years from grant of the patent. But aside from payment of the fee, nothing else is required. Maybe instead of a declaration of use, it may need a declaration of relevancy – and maybe that relevancy term is dependent upon the industry.
The patent law currently provides a 20-year term of an exclusive right to make, use, or sell the patented invention, in exchange for an enabling public disclosure of the invention to the public. The whole purpose behind the system is for the public to gain possession of an inventive idea and replicate it or re-purpose it. But 20 years in some industries, like the rapidly advancing software industry, may be too long of a term of protection. Maybe we need shorter terms for software patents, much like we have a shortened term for design patents (14 years from issuance).
We must think very carefully about how we define “patent troll” and how we treat them. We also need to find a delicate balance in avoiding seemingly frivolous lawsuits and protecting inventors’ rights.
How might Oliver treat the similar subject of trademark bullying?