City Journal Summer 2014

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Summer 2014
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Steven Malanga
Trolling for Dollars « Back to Story

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Any patent attorneys hereabouts who want to weigh in on this?
In my days as a design engineer, I reviewed many patents and what becomes abundantly clear very quickly is that there are a multitude of overlapping and obvious patents. Eventually, you realize that patent examiners are grossly understaffed, and react by approving most patents if formatted correctly. “Let the courts sort it out” seems to be their attitude.
Hiring more patent examiners is not the solution. The solution is to subject patents to industry review so the vested interests can do the leg work to determine if a patent is innovative or not. Right now, all any patent does is give you the right to sue someone and the guy with the deepest pockets usually wins.
Recording someone making "noise" of any kind & placing it on a medium for later resale? That's a replica of a prior art!

Phonograph: Patent(s) issued to Thomas Alva Edison!
@ Robert Kelly

So because some big companies act in bad faith, its ok that people shake down honest businesses (big and small) with nutty lawsuits? I guess two wrongs make a right in your mind.
@ Lars

This guy didn't invent anything. He tried something, failed at it, and then much later retroactively decided to pretend like something that others had developed was actually his "invention". This would be like if Gutenberg's family demanded royalties from every modern day book publisher.

And the case with Apple was a different patent case.
Any idea so roundly hated by American capitalists must have something going for it. Sorry, but there are too many examples of inventions stolen by companies too big to sue for me to get all weepy about "patent trolls"
This article, by a person who knows nothing of patent law, starts with the unfounded assumption that the Personal Audio patent is invalid. But, under the law, a patent issued by the government is presumed valid. Moreover, the Personal Audio patent in this case has already been extensively litigated and found not invalid. And it was not litigated by some random guy, but by Apple. Apple could not prove the patent invalid. Yet here we have commenters who have never read the patent claiming to be certain that it shouldn't have been issued. I am at a loss to understand why inventors should not be compensated for their inventions.
Good article.

Please, CJ, more like this.

Informative, well written, topical... and done without labored/ugly RW talking points.
@ Jim S

You really think those are comparable situations?

An oil company geologist is a paid expert who uses training and scientific processes to try and give valuable information to a client.

A patent troll comes along later and claims that he once had the idea to drill for oil and so everyone who subsequently drills for oil owns him a royalty for his "idea".
The history of Blackberry and the NTP lawsuit and settlement in 2006 would be a great example of the theme in your story. Excellent article.
Gerard M. Delaney April 06, 2014 at 3:54 PM
For many years, the Library of Congress has provided recorded books and magazines for the blind. Famously, at one time they included Playboy in this program ( just for the articles, of course).
What has been missed in this story is that the fight against Personal Audio has been going on well before Mr. Carolla's campaign began. The Electronic Frontier Foundation (EFF) in 2013 filed a review case with the US PTO to overturn the Personal Audio patent citing that there was prior art and it was overbroad. So far the first attempt to supeona the supporters of the EFF's case by Personal Audio was thrown out by a judge, so there is high likelihood that their patent will be proven to be invalid to begin with. People have been recording episodic content and releasing it on the Internet since the late 1980s, so filing their patent in the mid-late 90s was invalid to begin with.

Regardless where you stand on the moral ground of patents, this is an invalid patent - plain and simple. Its one thing to argue to protect inventors, but when the very invention that is trying to be prevented was a stolen idea to begin with, the entire argument should be refocused back on the validity of the patent in the first place.
Steve

Geologists for years have come up with ideas for where to drill (by others) In return, for their ideas - they typically receive a royalty.
Tell me how you make a distinction - legally - between the patent troll - and having a patent isn't the distinction - as it would seem both the patent and geologist's idea - have one thing in common - the idea to protect.

I am not a geologist


QUOTE: in the 1990s, when he hit upon the idea of recording people reading newspaper and magazine articles aloud and packaging the recordings on old-fashioned audio cassettes.

There are ads in magazines such as National Review in 1981 offering tapes of articles read by the authors, and by others. I guess the patent office missed those. It misses a lot. Patent applicants are supposed to disclose "prior art," but there is a subtle art to choosing what to disclose, what to overlook -- and hope it will be missed.

France before 1789 saw publication of several heavily illustrated works on contemporary arts and industries -- the Artes et Metiers series and Diderot's Encyclopedie being the best known.

Drawings from these books -- sometimes modified, usually not -- pop up regularly in 19th century volumes of the Official Gazette of the US Patent Office, as innovative inventions of Americans with no technical background of their own.

The British Patent Office was even more accommodating to local citizens taking out patents on inventions (sometimes very old inventions) appropriated from abroad.

Another problem -- invention thieves, who simply steal the work of independent inventors, and beat them to the patent office. I knew one such fellow, a French Canadian, who had amassed quite a portfolio of European patents on inventions stolen in the US, before his mysterious and unlamented disappearance.

I knew of another who sold back his booty for $50,000 -- and when he later realized that the invention had come to be worth millions, tried for another bite -- but this time was deterred by the threat of criminal prosecution.

An idea or concept is not supposed to be patentable -- only a novel practicable implementation of an idea. The salient factor should not be whether or not the patent owner makes anything -- most don't -- but whether or not the patent protects the specific details of making something new and different, or only describes something vague and abstract.