“So we will continue to plod on. In fact, we will be expanding this activity to a new website soon.After all, what’s the alternative? Maybe if we all close our eyes and ears, all the bad things will go away?”
Written by: Jakke Mäkelä, Timo Tokkonen, and Niko Porjo.
The postings this week have, we think, given an overview of what a project like Troglodyte could hope to achieve against entities like Intellectual Ventures. Not much, but even a tiny bit helps. Especially posting four might give ideas on countermeasures against the worst of the trolls.
The possibilities are quite limited; on the other hand, being prepared is infinitely better than being unprepared.
1. Define your own application in as much detail as possible
2. Find potential trolls, especially in newly granted patents (or ideally applications)
3. Evaluate the risk
4. See if there are any weak spots in the patent. It is not very likely that anything dramatic will spring up, but a careful analysis of the “metadata” might bring up potential weaknesses in, say, inventor names.
5. Be prepared
One of the most fundamental rules in IPR is simple: keep your mouth shut. If you have a strategy, don’t let the other side know about it.
That is probably good advice, but nevertheless we are advocating the opposite. It really is a serious problem that no one knows how serious this problem is. Bessen and Meurer 2012 used surveys to estimate a ballpark figure for the direct costs of litigation; they came up with a figure of ~20 billion USD a year for litigation, and ~10 billion USD in “hidden” licensing fees that never went to court. (The total R&D cost in the US awas ~240 billion). They suspect that the actual figure may be much higher, but difficult to estimate because no data are available.
Transparency could at least provide such data. It may be difficult to collect it openly, since the reflex action by a lawyer would almost certainly be to stay silent. Perhaps some kind of anonymized system is needed?
Being transparent about the patent analysis may also be a bad strategy. After all, if the case were to get serious, it gives the opposite side too much information. In the worst case, it can allow a troll to notice loopholes that he has missed, and thus cause more damage than good.
Nevertheless, we simply have an intuition that transparency is the best approach, whenever it is legally possible. Patents, at least in some areas, have become a game (or war) that is completely divorced from the real world. Secrecy is a key unwritten rule of that game. What happens if we just stop following the unwritten rules?
Not many people so far have wanted to join us in what is, statistically speaking, a career suicide in any career path even vaguely related to the patent industry. However, we have gotten enough anonymous feedback to make it clear that something like this is worth trying.
So we will continue to plod on. In fact, we will be expanding this activity to a new website soon.
After all, what’s the alternative? Maybe if we all close our eyes and ears, all the bad things will go away?