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Posted: August 08, 2011

How to fix the patent troll problem

We should take a page from Samuel Morse's book

Darin Gibby

A recent story on NPR took a negative view of the patent enforcement practices of various non-practicing legal entities, such as Intellectual Ventures. The basic gripe of many in corporate America is that these so-called "patent trolls" exist for the mere purpose of obtaining bogus patents, typically in the software arena, and then using them to extort money from innocent infringers.

While many attempt to place blame on these legal entities, others have realized that a better approach would be to fix the patent system, in essence taking the sword out of their hands. But in so doing, these critics have merely attempted to create statutory defenses by making certain patents, such as those relating to performing financial transactions, subject to higher scrutiny in the patent office. Some would ban them altogether, rather than address the real issues associated with software patents.

What most people don't realize is that the equivalent to today's Internet and e-commerce patents has existed since 1840, when Samuel Morse patented his famous Morse Code. Morse was granted U.S. Patent No. 1647 that covers: "The mode and process of recording or marking permanently signs of intelligence transmitted between distant points" by using electromagnetism. In reality, this is no different than today's Internet, where packets of electronic data are transmitted to different points, then rendered on a display screen. If it was okay to grant Morse such a patent more than 150 years ago, then why not today?

Perhaps the real issue isn't what is patentable in terms of subject matter, but whether an idea has actually been reduced to practice. In Morse's day, patent models were submitted not only to prove that the idea could be made in the flesh, but also to give the public notice of what exactly had been invented.

Today we desperately need a modern equivalent to the model requirement. If the model requirement were resurrected, it would force inventors to prove that they have actually invented something--as opposed to simply scribbling some semblance of an invention on a patent napkin, then being awarded a twenty-year monopoly. Such a requirement would eliminate today's paper patents--ideas sketched out on paper but never actually built--and would eliminate much of the dubious litigation involving so called patent trolls.

Today's patent office no longer has the space to store physical patent models, but it could document proof of construction on video. Patent applications can be filed by mail or electronically. For those filing by post, a DVD could be submitted along with the application. If filed electronically, a video file could be uploaded to the patent office web site. After eighteen months, not only would the patent application be published (as is currently the case), but also the video could be made available for public inspection by a simple posting of the clip on YouTube.

The model requirement worked before. It can work again. And it would go a long way toward solving a major problem with our patent system.
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Darin Gibby is a partner with the law firm Kilpatrick Townsend & Stockton, and the author of Why Has America Stopped Inventing? Reach him at dgibby@kilpatricktownsend.com or at www.daringibby.com.

 

Darin Gibby is a partner with the law firm Kilpatrick Townsend & Stockton, and the author of Why Has America Stopped Inventing? Reach him at dgibby@kilpatricktownsend.com or at www.daringibby.com.

 

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