Have you seen John Oliver's piece about abuses in the patent system? If not, take a look here. The 'Last Week Tonight' host has quite a bit of fun at the expense of the patent system. He tossed out three primary complaints:
- patent Owners That Don't Practice Their Patents Shouldn't Be Able To Assert Them;
- patent Owners Enforcing Their Patents Are Extorting Parties, Including Small Businesses And End Users, That Lack The Funds Or Capability To Litigate; And
- patents, Especially Software Patents, Are Too Vague, Resulting In Uncertainty As To What Products Or Actions are encompassed.
John Oliver is witty, dry, and often downright silly – and it is for those reasons that millions of people are drawn to his humor and his show. For those of us inclined to think that America's tradition of strong patent protection has led us to be the most innovative country in the world, this particular story drew our attention for different reasons. His reporting posited the idea that the Innovation Act, H.R. 9, working its way through the House of Representatives, would solve most of the problems he identified in our patent system. Far from providing the solutions its proponents claim, that legislation would do little or nothing to limit the sending of bogus demand letters to unsophisticated targets in hopes of extracting nuisance value settlements – a practice that many decry as the most egregious example of patent abuse. Further, Mr. Oliver seems unaware that the last several years have seen judicial action and legislation that address the costs of patent litigation and the vagueness of software patents. Whether these measures are sufficient without additional legislation is up for debate, but John Oliver's hypothesis is weakened by his reliance on outdated and largely irrelevant facts and data.
In the interest of making sure truth isn't sacrificed for the sake of a few good laughs, there are several points we would like to raise.
- Not every patent owner that licenses its patents rather than practicing them is a "patent troll" deserving of punishment or deterrence.
- Patent litigation is decreasing, and its costs are overstated.
- With the America Invents Act of 2011, Congress has already taken steps to reduce the cost of patent litigation.
- The Supreme Court has also recently addressed the costs of litigation.
- The Supreme Court addressed vague software patents as well.
Look for a more thorough analysis to be provided on Monday, when we will share statistics and data that show that steps already taken by Congress (passing the America Invents Act) and the Supreme Court (decision in Alice Corp. v. CLS Bank International and others) have gone a long way to easing the issues of concern enumerated by Mr. Oliver, driving down patent litigation (both in volume and expense) and improving the quality of patents, particularly, software patents.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.