HTIA member companies are the primary purveyors of the alarmist patent troll fairy tale
by: Ben Brownlow | September 2, 2017
Earlier this summer, eight of the most well-capitalized technology companies in the world founded the High Tech Inventors Alliance (HTIA), a patent reform advocacy group pushing for a stronger patent system (read: one that will benefit the interests of its members). Founding members include eight start-up success stories – Adobe, Amazon, Cisco, Dell, Google, Intel, Oracle, and Salesforce – it’s clear to see that the tech giants want to solidify a monopoly over intellectual property rights.
The HTIA’s first, stated priority is to improve patent quality – a goal which, on its face, no reasonable person would oppose. To improve patent quality, one of HTIA’s proposals suggests that “Courts should define claims in light of the specification so that claim scope is clear and commensurate with the contribution a patent makes to the public.” There is nothing wrong with this approach, in theory. However, reading a claim in light of the specification is often conflated with importing limitations from the specification into the claims, which can result in too narrow a reading of the granted intellectual property right. Furthermore, the HTIA membership boasts ownership of over 115,000 patents. If they are so dedicated to eliminating low quality patents, perhaps they should examine their own patent assets and relinquish those that are poor quality. I think the HTIA puts it best, “[e]ven one bad patent can cause significant economic damage to American businesses.”
Another goal of the HTIA is to make patent litigation fair and efficient. Again, hard to argue with that sentiment. And again, reading the suggested means for achieving that goal reveals a desire for the process to be fair and efficient only for the accused infringer, not the plaintiff. The Inter Partes Review (IPR) proceeding has provided efficient infringers an easier, alternative means to invalidate patents before a plaintiff has a chance to defend its rights before an Article III judge.
Shockingly, HTIA’s support for IPR proceedings does not come with any recommendations for how to make improvements to the program, on the contrary, they see nothing wrong with the current system and think any changes would be ill-advised. The HTIA characterizes the IPR process as “giving the public a low-cost vehicle to weed out bad patents from the system.” Perhaps these tech giants consider themselves to be performing a public service? I’m not aware of many members of the general public who could afford this “low-cost” vehicle. While IPR proceedings do have a lower average cost when compared to litigating in district court, the reality is that many of these IPR petitions are filed by member-based organizations such as Unified Patents in conjunction with a pending district court case. These member companies could dedicate more resources to their respective IP departments to evaluate patent licensing proposals outside of litigation if fairness and efficiency were the real goal. Unfortunately, the current state of the patent system provides large companies with every incentive to ignore licensing opportunities and dare patentees to try to prove their case either in district court or before the PTAB.
HTIA member companies are the primary purveyors of the alarmist patent troll fairy tale. Such pejoratives are not helpful in addressing meaningful patent reform, especially where the trope has devolved into any entity who seeks a reasonable royalty in exchange for a license to its intellectual property being labeled as a patent troll. As the myth grows, the term now includes research universities performing cutting-edge scientific research that could improve the lives of millions of people in the future. Funds received from licensing its intellectual property to the marketplace provide universities with the necessary funding to continue innovating and improving people’s lives.
For example, Wake Forest University granted Kinetic Concepts Inc. an exclusive license to its revolutionary V.A.C. System, a mechanical vacuum wound healing technology. A little thing called the freedom of contract enabled Wake Forest to realize a return on investment for its research spend without having to commercialize the product itself (an action that, in the mind of the tech giants, would render one NOT a patent troll) and put money back into its cutting-edge medical research.
Why should one class of institutions be castigated for seeking to generate revenue from its innovations and another praised? The answer is clear – the universities or their proxies must have sued the wrong infringers. Those with deep pockets and an army of lobbyists.