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With all the recent and on-going lawsuits between major tech companies, there has been a lot of discussion regarding patents — the patents themselves, the patent system in the US, and those that simply seek monetary gain by abusing this system. The latter are what we call “patent trolls”, individuals or public entities that hold patents (which are typically very broad in scope) for the sole purpose of suing others and making money off the lawsuits. Kent Walker, Google’s senior vice president and general counsel, says Google has a fix for that.
In a series of opinion pieces running on Wired, Kent Walker outlines this fix in three simple but very crucial steps.
First is “let’s stop bad software patents from issuing”. This is, to put it simply, the root of the problem. The reason why the patent trolling problem exists in the first place is because patents, intended to be used for abuse, are granted. If we don’t grant the “bad” patents, then the problem would be greatly mitigated. As part of the process to stop bad software patents from being issued, Walker suggests that “we should demand better descriptions and clearer claims that map the real contribution”, as a means to prevent many of these “elastic claims”.
The second is “weed out the bad software patents that have already been issued”. Walker notes that it was in the 1990s, when the US Federal Circuit first allowed software patents, when many current abuse-able patents come from. The broad nature of those patents is what makes them especially alluring to patent trolls, with some trolls being as ridiculous as claiming ownership over the idea of e-commerce. After all, not all patent trolls started off as patent trolls; some may have been legitimate-companies-with-patents-turned-trolls and this second step is necessary to get rid of them.
The third of these steps is the need for “clearer rules for damages and awarding costs”. Walker points out the recent case of Apple being ordered to pay a sum of $368 million due to patent litigation via a patent troll. He notes that these large amounts of money encourages patent trolls to continue doing what they are doing.
Essentially what Walker is saying is if someone can file for a broad patent which they can use against a company that does all the hard work to create actual useful products and services, then patent trolling will continue to exist. Why do the hard work when you can essentially game the system, and profit from those that do try to innovate?
It should be noted that while Walker is specifically talking about patent trolls (companies that exist for the sole reason of suing other companies over intellectual property), his arguments and fixes can be applied to legitimate companies that take part in frivolous patenting and litigation. You know, like patenting the turning of a page in an eBook. (Just sayin’.)
This is a sad quagmire that the tech industry has to face. However, if people like Kent Walker continue to highlight the issues with our system, with fixes ready to be implemented, hopefully more people take notice and eventually help put an end to it.
