Devastating New York Times critique of US patent reform may indicate the pendulum is swinging back
Joff Wild
The Gerald Loeb Award is regarded as one of the most prestigious there is in business journalism. Past winners include some of the profession’s biggest and most influential names. Among them is New York Times columnist Joe Nocera, who has been a recipient three times – in 1993, 1996 and 2008. That kind of recognition makes Nocera an influential voice; and that is why his column entitled The Patent Troll Smokescreen, which was published by the Times on 23rd October, is potentially so significant. But not only significant, also bang on the money.
Actually, that is not quite right. In using the award of $234 million to the Wisconsin Alumni Research Foundation (WARF), after a jury found that its patents had been infringed by Apple, as a segue into a devastating critique of the patent reform troll narrative, Nocera assumes that no-one would ever seriously consider WARF itself to be a troll. He is wrong. WARF has been labelled that many times and back in 2012 was identified by Business Insider as the fifth most fearsome troll out there.
That, though, is a quibble; for the fact is that Nocera has put together the most lucid and powerful argument against patent reform proposals currently before Congress that I have ever read in the mainstream American media. He has correctly identified the lobbying dynamics behind the legislation and the harm that it would inflict on SMEs and lone inventors, while also pinpointing the damage that has already been done to both by the America
Invents Act and the Supreme Court:
But what if, in the name of cracking down on trolls, Congress passes an anti-troll law that winds up having huge negative consequences for legitimate inventors? What if a series of Supreme Court rulings make matters worse, putting onerous burdens on inventors while making it easier for big companies to steal unlicensed innovations?
As it happens, thanks to the 2011 America Invents Act and those rulings, big companies can now largely ignore legitimate patent holders.
What's more, he has brought the term “efficient infringing” to wider attention and explained it perfectly:
That’s the relatively new practice of using a technology that infringes on someone’s patent, while ignoring the patent holder entirely. And when the patent holder discovers the infringement and seeks recompense, the infringer responds by challenging the patent’s validity.
Should a lawsuit ensue, the infringer, often a big tech company, has top-notch patent lawyers at the ready. Because the courts have largely robbed small inventors of their ability to seek an injunction — that is, an order requiring that the infringing product be removed from the market — the worst that can happen is that the infringer will have to pay some money.
In other countries, the US would call this practice “compulsory licensing” and would seek to have it outlawed. At home, though, it has become the norm and many patent owners are suffering as a result. Those inside the patent world know all this, now it has been explained to a much broader audience in language that is accessible and clear.
Of course, there was more that Nocera could have written about. He might have referred to the dodgy dataused to justify the legislation and the intellectual dishonesty of the “troll” narrative; while he may also have noted that the PTAB has now become a weapon of choice for many big tech companies, which can use the threat of multiple reviews – and the major additional costs and risks that they involve – to dissuade SMEs from asserting their rights.
But New York Times columns have word counts and like any good journalist Nocera was never going to exceed his. What he has done, though, is deliver a level of balance to the coverage of patent reform that was not there before. Decision makers in Congress and the courts (and, maybe more importantly, their staffers and clerks) read the Times and other mainstream media platforms, and they take note of what people like Paul Nocera have to say.
Up to now, the commentary on patent reform has all been one way. Not anymore. For those of us who want an honest debate about the real need for more change, as well as a proper look at all the consequences of what Congress and the courts have already done, that can only be good news.
There has been some excited talk recently of the patent pendulum perhaps beginning to swing back towards patent owners in the US. From where I sit there has been very little indication of that, but the fact that such an influential voice has published this piece in a newspaper that only a few months ago came out in favour of reform may be a small sign that things are changing – especially when seen in the context of what is (not) happening in Washington DC.
One column will not come close to changing the current situation, but it is a welcome start. Let’s see if other influencers now open their eyes a little and start asking reform proponents much harder questions. Further discussion of “efficient infringing” might be a good place to begin.
