Troll Redux, And My Challenge to the Tech Community

November 14, 2011

11:30 am

My colleagues and I hosted a DCWEEK event focused on the controversial topic of patent and copyright trolls. Read my earlier TechCocktail post if you need an introduction to the topic. (And if you missed our event, check out our patent and copyright troll presentations).  We had the opportunity to engage in a lively discussion with the participants regarding perceived and real problems with the patent system, lawyers, trolls, litigation, and the effect all these things have on innovation.

No wonder this topic is controversial. There have been more than 270 U.S. lawsuits over mobile technology this year alone. That’s an insane number of patent cases relating to one technology area. And patent lawsuits usually cost millions of dollars to take to trial. One company is suing mobile software developers for patent infringement as fast as they pop up and has led a number of European developers to declare that they will avoid the U.S. mobile app market.

Tech startups don’t want to pay money to engage in patent litigation; in fact, they don’t have that money. Nor do they want to pay licensing fees for technology that they believe the patentee never really invented. Finally, they don’t think they can afford the fees related to preparing and prosecuting their own patent applications. But venture capital companies like to see a portfolio of intellectual property (IP) assets that protect the company’s core products and services. So patent-related work and disputes become a cost of developing and selling technology in this country.

Many members of the tech community think that patents shouldn’t be granted for software technologies in particular. It’s an extension of the old hackers-code philosophy. Thriving crowd-source and open-source communities produce indispensable products such as Wikipedia, WordPress, and the Apache projects. They also demonstrate the popularity of utopian philosophies. In most parts of the world, software is not protectable by patents, so why is the law different here?

Well, the U.S. is often thought of as the center of the mobile technology and Internet world, and our laws offer strong protection for these technologies. Maybe that’s why we don’t have a pervasive knock-off problem in the U.S. relative to the rest of the world. Instead, we have to focus on blocking importation or seizure of products that have been copied abroad. IP protection is a vital component of an economy that fosters and rewards innovation, investment in local businesses, and fair use of property that individuals and companies develop.

Not too long ago, IP laws and protection regimes neatly divided along simple and distinguishable lines. But new technologies have dramatically altered IP practice and protections over the last decade.

Along with these new technologies, we must expect creative (and annoying) interpretations and uses of our IP system. This includes the thriving patent litigation and licensing business model of the “patent troll.” But don’t worry—the next innovative step in this system involves creative solutions that tech companies will apply to this seemingly intractable problem. As I write this post, GroupCamp is working on a creative crowd-sourcing solution for its patent troll problem….

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Antigone is a recovering BIGLAW lawyer who is now the founder and CEO of Cloudigy Law. She is an unabashed technophile who loves her day job because it’s about 50% technology and 50% law. Follow Antigone on Twitter @antigonepeyton.

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