What's interesting to me about this story in light of current events is that Johnson Research and Development Co., seems in many ways like an NPE. He doesn't make products directly, he simply licenses the patents to other companies that do make the products, and sometimes sues them.
Obviously, he's not a patent troll, but what's the bright line between what he does and what a patent troll does? This is a critical question in the patent troll discussion, because it is absolutely the case that every Intellectual Ventures, Lodsys, and Rockstar thinks of themselves as being innovative inventors like Lonnie Johnson. They'll hold independent inventors like him up whenever legislation is proposed and say that it'll hurt good old-fashioned American invention, and maybe they'll even be right.
It's critical that there be a clear division there, or else reform will never go through, or worse, end up hurting actual inventors. How can that line be drawn?
He invented a real (specific) product with prototypes and everything, licensed that product to a real manufacturer who then made it, gained lots of money, and then stiffed him on the payment they promised.
Trolls would have produced no toy at all, for anyone, kept the whole process a secret, and then sued every child who ever flung water at another at a birthday party.
"Its the difference between using a feather and using a chicken." You know it when you see it.
Edit: Just for clarity, its the direction the arrow points. Lonnie Johnson created a product and then went out and sought a company to start producing it. Trolls do it backwards, they go out and find companies that are already producing it and then threaten them with forcing them to stop.
What about the hypothetical scenario where Hasbro tells him to get lost, then rips off his design and produces the stuff anyway?
As far as I can tell, this scenario is very difficult to distinguish from a patent troll. The only real differentiator is whether or not the patent is actually a novel invention or whether it's just the "click a button on the internet" kind of crap that so many of these things end up being.
>...this scenario is very difficult to distinguish from a patent troll.
It's really not. This guy invented a physical product, got a patent, then licensed it (under contract) to a company to produce exclusively. This is a "valid" use of patents in the intended spirit and is a far cry from trolling.
Hasbro then renegued on the contract and tried to stiff the guy for royalties it had agreed to pay him. The lawsuits filed were not for patent infringement. They were for unpaid royalties and breach of contract.
>...Hasbro tells him to get lost, then rips off his design and produces the stuff anyway?
Well, that's what the courts are for, but it still doesn't make it trolling if he decides to go after them. I guess some people believe that no ideas should be protectable, in which case there shouldn't be a such thing as patents. In that case, anyone seeking a patent would be a de facto troll. But, that's a separate argument. Given that patents do exist, trolling describes a distinct set of behaviors apart from an original inventor seeking to protect his invention.
Don't most patent trolls purchase or license the patents they are suing with as opposed to actually filing them? That seems like a pretty big distinction.
If you rely on that, then you've made it fairly easy for a big company to steamroll over a legitimate small inventor, since they won't have the resources to compete with your legal team, and they can't sell the patent to someone who does have the resources since that person would then be labeled a troll.
Exactly this. This is really the way patents were intended to be used. I think the patent trolls have turned the word "patent" into a dirty word.
But, they have a legitimate role in protecting ideas and thereby incentivizing innovation for inventors/actual creators. It's when trolls go off buying patents in order to charge a toll and/or threaten actual producers that it becomes a form of extortion and gets out of whack.
Exactly right. Trolls try to extort money after the fact. Mr Johnson licensed his idea to the toy company before they started producing it. Lucky for him, his agreement granted him 2% of any 3D product that resembled his invention.
...but he had to patent it before he could license it to him. Between patent and licensing could be infringement. Then he'd be going backward to extort money, right?
Put another way: if the laws are changed to prevent backward "extortion", what incentive is there for Hasbro to license in the first place? Why not just let him come in with the patent, and then willfully infringe? And how do you tell the difference?
Your edit is much clearer than "you know it when you see it" (Justice Stewart), which pretty much represents giving up on any formal definition.
I like your suggestion of detecting trolls by whether they actually transmitted/helped anyone with the invention. There's a problem in patent law, that you're infringing even if independently invented it. (Copyright is different, you only infringe if you actually copied - though see "unconscious copying"). Your suggestion could be implemented, I think, just by getting rid of that. Which might be a good thing, though difficult. It's a big change (though copyright case law and legislation would provide some guidance.)
Of course, inventors need to be able sue people that they didn't help produce it, so the copying part is important.
Alternatively, make it a requirement that you have to make prototypes and put it into production. This is also a big change (though, in the past, a prototype was a requirement). But I think it would be easily gamed, with shell production companies. From the other side, for real inventors, what if production requires substantial capital investment? The producer just refuses, and the patent fails. Maybe other requirements could avoid this, but seems tricky.
> Trolls do it backwards, they go out and find companies that are already producing it and then threaten them with forcing them to stop.
That's a very narrow view of the situation. Ask yourself, where do trolls get these patents? Well, there's at least one study [1] about that, and the answer is pretty complex. But in the context of this thread, the relevant information is that trolls get a significant chunk (about 29%) from individual inventors.
It's important to note that not everyone is like the inventor in TFA. As an individual, it is very difficult to get companies to license your patent, especially since both sides know that the only way to enforce it is a very expensive, complex and uncertain lawsuit. So these inventors may often "outsource" the enforcement to NPEs.
If you want to see this in action, go to CES. Many well-known trolls like Acacia actually have a booth at CES, and most of their traffic is from individuals who drop by to say, "Hey, I have this patent that XYZ probably infringes..."
In this case it seems to be entirely a royalty dispute, and has nothing to do with the patent. Hasbro properly licensed the product, the just didn't properly pay out the royalties.
Also, the patent reform bill[1] that was featured not so long ago isn't about holding companies, it's about making the trolling process harder. One of the provisions is requiring the "real party of interest" to be exposed in the litigation, so a shell company litigating on behalf of microsoft would have to get microsoft involved with it. The other big thing has to do with validity and pleading. In many cases the lawsuits are brought about without any valid claim, and are just used as a harassment tactic to get small companies to pay up their fee instead of going through an expensive and painful legal process. Under the bill, the discovery process is halted until the patent is interpreted, and it forces the patent holder to be more specific about which claims are actually at issue.
None of the things put in that bill seem like they would affect the likes Johnson, had this case even been about patents, as he has legitimate and valid patents, and he himself is the real party of interest.
That is an excellent explanation! What it suggests to me is that the problem with patent trolls is perhaps not so much with the patent system itself but with the specific mechanisms through which patent lawsuits proceed.
Kind of like how software security most often fails in the implementation rather than the theory. :)
No, there are definitely problems with the patent system itself in addition to the problems with the legal system.
Take the Rockstar suit against Android. We know who the real parties in interest are (Apple, Microsoft, etc.). Rockstar isn't going after small businesses who are more likely to settle than go court. They're going after Google (which will almost certainly fight back). I don't know about the validity of the claims, but they're at least plausible enough that Google felt compelled to bid for the patents.
Nevertheless, the Rockstar suit feels wrong. And it's because Google created Android independently of anything Rockstar (or the previous holders of the Rockstar patents did.
And it's because Google created Android independently of anything Rockstar did
You may be right, but a similar claim could be made about any patent case. (i.e., it's a weak argument.)
Consider you invent and patent a time machine. I've never met you or done business with you, but I read your patent and "independently" start producing a very similar time machine. You might have a problem with that. Obviously, Google claims they've never read the Rockstar patents or that they're irrelevant, but equally obviously, I'd make exactly the same claim regarding the time machine.
> You may be right, but a similar claim could be made about any patent case. (i.e., it's a weak argument.)
You would be correct that this wouldn't save you in court -- under current patent law, independent inventions still counts as infringement. But my argument is that in terms of what feels "right" or "just", independence is the key test. If it turns out later that Google did in fact read Rockstar's patent and copy them, the outrage at Rockstar would probably be mitigated.
> Obviously, Google claims they've never read the Rockstar patents or that they're irrelevant, but equally obviously, I'd make exactly the same claim regarding the time machine.
You could claim that, but I could also prove it false. If you read the patent by downloading it online, there's an electronic paper trail. Unless you're Doc Brown, building a time machine sounds complicated enough to require multiple people, so there are now witnesses to your copying. I'm not a professional investigator, but if I were, I'm sure I could find some other ways of proving or disproving copying -- especially if there were bajillions of dollars on the line.
That said, if you had a time machine, I suppose you could just go back in time and patent it first and avoid the issue altogether. But temporal mechanics mechanics aside, if you're curious on how to make an independent invention defense work, I've written a much longer post on it at http://www.techdirt.com/articles/20121011/14171220681/yes-in...
> under current patent law, independent inventions still counts as infringement.
Also under current patent law, "obvious" inventions are not patentable. There's a tension involved in saying an invention isn't obvious, despite its independent development in various places.
Obvious to whom? Patent law says it can't be obvious to a "person having ordinary skill in the art." But suppose a particular invention is obvious to two people, both of whom hold exceptional skill in the art, but is obvious to no one else. In that situation, you could have independent simultaneous invention, but the invention would still be patentable under U.S. law, and the patent would go to the first person to make it to the patent office.
I'm thinking that it's easier to get support for reforming details about the lawsuit proceedings than the patent system itself. The bill is smart in keeping its scope very small and clean, tackling the real common sense improvements that will have a big effect of frivolous litigation.
The patents were not just transferred in? Maybe the solution is to stop treating patents as some kind of business asset you can willy-nilly transfer and sell. Keep it with the original company, if theres no legal successor, the patents are gone.
Maybe we could limit the amount of damages awarded related to how many times the patents have been transferred. Potential damages are cut in half each time they are transferred. It would keep the patents with the original innovator.
Non-obviousness to someone working primarily in that field is a good start to determining the line.
We get most riled up by scan-to-email or click-here-for-full-version patents. The idea that you could independently come up with an obvious solution like clicking to upgrade and then need to pay some shitbird for the privilege of implementing it is despicable.
Is a pneumatic squirt gun with integrated pump really a huge innovation? If you gave an engineer a task of building a hand-held water gun that shoots more than 50 feet, how many wouldn't think of something similar? The first patent for a compressed air squirt gun toy was 1949 [1] and the Cosmic Liquidator (1977) [2] enjoyed moderate commercial success (the market for high-end $6 squirt guns was limited; everything else was $3). (Johnson's patent cited these.) Shooting water with compressed air has a long history, nor is putting the pump on the device (air pellet guns have done this for a while, for example).
While the Super Soaker was a wildly successful product, it was still an incremental combination of existing technologies (moving the tank from a backpack to the gun and borrowing pump ergonomics from air guns). Is it really fundamentally different from the software engineer that puts together existing packages with some tasteful glue code?
i think it takes some leap of imagination to think of kids having fun with this kind of toy. it's engineering plus toys plus the confidence to know that it will be massively successful so you pursue it all the way and get a patent.
it's more of an innovation than something like Bratz, which itself is somewhat of an innovation. what does it take for you to make Bratz in a world of barbies? it really does take imagination, a lot of thinking, and a lot of experience, i think.
As someone who grew up without Super Soakers, and saw them hit the market, yes, it was a very novel product. Fundamentally, individual elements existed in other products already, but the actual product was most definitely a leap in squirt gun tech (e.g. pneumatic water/air rockets).
The biggest innovation I recall in squirt guns was using a battery-powered pump to create a fairly pathetic, but "automatic" stream. And how long were squirt guns around before then?
Yes, there's a whole world of difference between developing a pressurized self-contained water pistol and a vague all-encompassing concept like "cloud backup".
One line you could draw is whether there's a prior relationship between the patent holder and the defendant (or the successors to those parties). BUT FOR Lonnie Johnson's work, Larami (and by extension, Hasbro) could not have made Nerf guns or Super Soakers (or at the very least, it would have taken some longer to come to market).
In contrast, you can't make any similar statement about what IV, Lodsys, or other trolls do. For the most part, business don't find out about those patents until after a lawsuit has been filed. There's no benefit derived from what IV or Lodsys "invented" and that's why it seems unfair.
This is basically the idea behind an "independent invention" defense -- that is, if I can prove that I independently invented something without assistance from the whoever previously patented the invention at issue, I should be able to get that patent suit tossed out.
Unfortunately, that's not what the law currently says. Moreover, thee's a fair amount of legitimate pushback against the idea. It's hard (but not impossible) to prove someone knew about a patent before they made something. And the question of whether something was independently invented usually isn't a binary one. If the patent holder tells his friend who tells her friend who mentions something in passing to me which inspires my invention, did I invent my product independently of the patent holder? Hard to draw a bright line there (but not impossible).
>it is absolutely the case that every Intellectual Ventures, Lodsys, and Rockstar thinks of themselves as being innovative inventors like Lonnie Johnson.
How sure are you about that? If they acquire patents, how could they possibly believe that?
Intellectual Ventures actually does create the patents. We think they're for obvious, trivial ideas, but they definitely create them. (I guess they don't actually sue other companies directly, either.)
My understanding was that it's likely that some of the people who work at Rockstar are the inventors of some of the held patents. Maybe not the key patents, but it's a company holding a lot of patents and employing a bunch of engineers, there's almost certainly some overlap.
I agree that the transfer of ownership of patents is a potential aspect of a dividing line, that seems to be a common theme. But it seems like it wouldn't be too difficult for a patent troll to skirt this by "employing" an inventor, or somehow wedging the name of one of their employees into the inventors list for every patent.
Intellectual Ventures actually does create the patents
Intellectual Ventures do create some patents, but they also buy a lot of patents. Most, if not all, of the cases that have hit the news involved patents Intellectual Ventures bought.
Perhaps not as inventors directly, but they could certainly believe the patents they are buying are innovative. (That's why they bought them! (supposedly))
In an abstract sense, patent aggregators (to coin a term) are not inherently bad. A small inventor faces a number of obstacles and risks marketing and protecting a patent (see linked story). Selling the patent to a middleman guarantees cash today. For many people, $1 million today is better than $10 million in ten years. That said, the implementation leaves a lot to be desired.
There's a world of difference, and in fact Johnson's case has a happy ending compared to the hundreds of honest inventors who lost everything in legal battles against the conglomerates that stole their ideas and made billions.
I think the line lies in the transfer. Patents should only be enforceable by the original inventor or businesses that are actively using the patent for goods/services.
> but what's the bright line between what he does and what a patent troll does?
He actually does something with his patents, he develops profucts and then licenses the manufacturing.
Patents trolls don't do anything useful. They buy the patents (most of which are trivial and obvious), and then they wait for somebody to implement said trivial and obvious.
Obviously, he's not a patent troll, but what's the bright line between what he does and what a patent troll does? This is a critical question in the patent troll discussion, because it is absolutely the case that every Intellectual Ventures, Lodsys, and Rockstar thinks of themselves as being innovative inventors like Lonnie Johnson. They'll hold independent inventors like him up whenever legislation is proposed and say that it'll hurt good old-fashioned American invention, and maybe they'll even be right.
It's critical that there be a clear division there, or else reform will never go through, or worse, end up hurting actual inventors. How can that line be drawn?