The Patent Problem

The world of patent litigation has become increasingly large and increasingly public. Big name clashes have occurred over the past few years, mainly centered around the technology industry. An ongoing, lengthy court battle involving Samsung and Apple has dominated much of the headlines, but a growing concern in recent years is the so called "patent trolls". These individuals or corporations specifically file patents, with no intention of using them, to litigate against companies who come up with similar ideas and uses, and who actually use them.

An article in the Wall Street Journal by John Chambers and Myron E. Ullman outlines the large costs of these patent trolls. Each author's company has been a victim of these "patent-assertion" entities, and they site a growing number of these companies in existence today:

According to RPX Corp., more than 3,600 companies and named defendants were sued by so-called patent-assertion entities in 2014, triple the number in 2006. Patent-assertion entities-aka nonpracticing entities, or as some would call them, trolls-that own patents but do not make products or sell services based on them file more than 60% of patent litigation in the U.S.

The authors further site a 2012 Boston University study that estimated that companies spend upwards of $29 billion annually defending patent lawsuits. In light of these facts, the authors call for greater regulation designed to curb abusive litigation. However, this litigation reform may be too broad based to fix this issue. If an individual or entity is to file for, and win the rights to, a patent, it only seems reasonable that they should be able to defend the unlawful use of their property. To say that someone is abusing patent rights simply because they are not currently acting on the patent is a matter of opinion; these entities could be protecting an idea for future use or looking to sell the patent when the technology becomes developed further. For a legislation reform to be truly effective, it must clearly define what is considered "abusive" litigation practices; that unfortunately comes down to a matter of opinion, which does nothing to solve the problem.

A well placed reform on the beginning stages of the patent system could go a long way in solving the patent problem. A Vox article entitled Everything you need to know about patients gives readers an excellent explanation for some of the root causes of the problem. Timothy Lee writes:

The Patent Office has around 8,000 examiners who processed more than 600,000 patents in 2013. Given the complexity of the examination process, that doesn't leave much time for examiners to scrutinize applications and search for evidence to invalidate them. The Patent Office has also struggled to recruit examiners with the technical expertise to evaluate complex patent applications...

Lee brings to the forefront the key hole in the patent system: lack of manpower. Simply enough, the Patent Office does not have enough skilled employees to make proper decisions on the applications of new patents. As a result, the burden has increasingly fallen on the court system to make the determination over the validity of patent claims and the settlement of patent lawsuits. A reform designed around patent approval process would go along way in solving the issue. Such a reform should focus on bringing in a greater number examiners who have skills in technology based industries and who would be familiar with their technological applications. Providing reform on the front end, not the back end, can cut down the costs that Chambers and Ullman site as a drain on the economy.