- - Thursday, November 14, 2013

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.

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