- NYT’s David Brooks: Obama has ‘manhood problem’ in Middle East
- Ted Cruz thanks Obama for denying visas to terrorists
- Survivors recall chaos, fear in Everest avalanche
- General Mills apologizes for ‘right to sue’ confusion, reverses policy
- Dealer wanted in U.S. for art fraud nabbed in Spain
- Easter morning delivery for space station
- Boxer Rubin ‘Hurricane’ Carter dies at 76
- Probe could complicate Rick Perry’s prospects
- Ukraine, Russia trade blame for eastern shootout
- Obamas head to church on Easter morning
EDITORIAL: Feeding the trolls
An appeals court threatens ‘the Progress of Science and useful Arts’
Government patent examiners are overwhelmed, which is the only explanation for some of the patents they grant. U.S. Patent No. 5,443,036, for example, protects the "invention" of using a laser pointer to exercise a cat. U.S. Patent No. 7,171,625 protects double-clicking on a mouse. Even the online Web merchant Amazon has a patent on the "one-step process" of buying with an online shopping cart. Something is obvious, of course, only after someone else thinks of it.
The ease with which the "discovery" of such obvious ideas can be converted into a legally enforceable, exclusive right has created the patent troll. Trolls have learned how to game the system, sometimes growing extremely wealthy without creating a single useful thing. All they need do is obtain a patent on someone else's idea, sue a productive company and collect millions when the productive company settles out of court to avoid a more costly court challenge.
The courts should take out a patent on how to enhance absurdity and make bad things worse. Lawyers are our most innovative citizens. For example, Akamai Technologies, which says it delivers 30 percent of all Internet traffic, sued Limelight Networks over what it says was an infringement of its patent on how better to do that. Akamai claims that a Limelight process for rapidly loading online videos infringes Akamai's own patented process. Two lower courts disagreed, but on review, a narrow majority of the U.S. Court of Appeals for the Federal Circuit invented a legal doctrine to declare Limelight an infringer.
Six of the court's 11 members cited an entirely new doctrine they call "divided indirect patent infringement," which is as complicated as it sounds. They ruled that a company can be made responsible if someone outside the company's control does the "infringing." If there's a laser pointer in a pet store, the store can be held liable if a walk-in customer picks it up and exercises a kitten without first paying royalties to the holder of the cat-exercise patent. This sounds, to a layman, nuts.
The dissenting judges in the Akamai case apparently think so, too. "It has no foundation in statute," wrote Judge Pauline Newman, a Reagan appointee, "or in two centuries of precedent." Judge Richard Linn, a Clinton appointee, accused the majority of legislating from the bench. "In its opinion today," he wrote, "this court assumes the mantle of policymaker ... it [has abdicated] this court's obligation to interpret congressional policy rather than alter it." Millions of dollars have been spent in court by both companies in arguments over the precise meaning of "tagging of embedded objects" without any benefit to the public at large. This is an example of how the patent system has lost sight of the constitutional principle that patents exist "to promote the Progress of Science and useful Arts." It's not to enrich lawyers.
The solicitor general must urge the Supreme Court to take up Limelight Networks v. Akamai Technologies to protect innovation and set clear infringement boundary lines in patent law. If the appellate ruling stands, it will be even more difficult for innovators to know whether they're on the right side of the law because they have no control over what others might do.
Patent reform is high on the list of priorities for Rep. Bob Goodlatte, chairman of the House Judiciary Committee, and a good thing, too. Congress can stop the feeding of patent trolls by revising the rules to focus on encouraging useful products, not to encourage the creative legal theories of lawyers and judges.
About the Author
- EDITORIAL: More Lerner smoking-gun emails at IRS
- EDITORIAL: Republicans finally fight back in phony 'war on women'
- EDITORIAL: Mark Warner running scared?
- LETTER TO THE EDITOR: Recent Brandeis choices disgraceful
- LETTER TO THE EDITOR: A Carson 'apology' to Obama
Latest Blog Entries
TWT Video Picks
Women losing coverage under Obamacare, too
Get Breaking Alerts
- Scalia to students on high taxes: At a certain point, 'perhaps you should revolt'
- Former Ranger breaks silence on Pat Tillman death: I may have killed him
- Special Forces' suicide rates hit record levels casualties of 'hard combat'
- Feds approve powdered alcohol; 'Palcohol' available later this year
- Army goes to war with National Guard, seizes Apache attack helicopters
- CHARLES: Holder's undermining of the law deserving of contempt
- U.S. Navy to turn seawater into jet fuel
- Harry Reid blasts Bundy ranch supporters as 'domestic terrorists'
- Justice at last: 'Evil woman' outed for grabbing girl's game ball
- EDITORIAL: More Lerner smoking-gun emails at IRS