In today’s increasingly computer driven and internet influenced society, there is a growing trend among companies and individuals to secure broad patents to allow these patented ideas to become widely accepted and engrained into the technological tide, and then to conveniently bring suit against the companies that have profited most through the implementation of these patented ideas. This practice has erupted into an enormous waste of resources and unrest among companies that are forced to defend themselves against patent litigation that threatens the very foundations of their corporate success. While there is justification for rewarding the discovery or invention of the patent, this does not always lend itself to economic efficiency or to the best use of the idea in question. Furthermore, it has become increasingly difficult to determine the rightful patent holder, considering the increasingly fast dissemination and widespread collaboration of ideas. This problem is aggravated by the amount of time that is allowed to elapse before a company is compelled to bring suit against a potential patent infringer. Many times, a patent holder is allowed to bring suit many years after an infringement, allowing both memory and evidence to only dimly reflect the true state of circumstances surrounding the patent.
Patriot Scientific currently seeks to recover damages of several hundred million dollars. It claims that the sale of any microprocessor running at speeds in excess of 110 or 120 MHz is in violation of its patent. There seems to be something inherently wrong about awarding a patent to a company with less than 10 employees that has done close to nothing in the development and expansion of the microprocessor market. And yet, there is a possibility that Intel and other companies that have contributed to what Patriot has estimated to be a greater than $150 billion dollar market, can be held liable for their efforts and success. There is also something unjust in holding these companies liable for activities that they have been engaged in for a period of time spanning more than 9 years. At the same time, Patriot only recently received its patent. It could be that they were diligent in applying for a patent on the technology in question, and that they merely made a good faith effort to protect their interests. Should they be penalized for the inefficiency surrounding the patent process?
British Telecom’s claims are somewhat more subject to suspicion as they have waited almost 11 years before bringing suit against internet service providers for their use of hyperlinks. British Telecom claims that they have a patent for hyperlinks (the connective links between the pages that comprise the World Wide Web). Would the court be justified in upholding such a broad patent which would allow British Telecom to be paid licensing fees on something that has become so fundamental to the internet, something that they have had little part in contributing to the growth or expansion of? Would it be fair to deprive them of their rights if they are a bona fide holder of the patent? How are patents evaluated? Should broad patents of this type be upheld? What is the best and most beneficial use of the patent in question? Should something so ubiquitous be owned by any company?
It is difficult to define the balance upon which these matters should weigh. Should individual fairness become the predominating value upon which patent law should focus? Or is there an overriding virtue in determining the best use of the ideas protected by patents? Should a company be forced to examine not only those patents that exist, but also those patents that are pending when deciding whether to engage in any business activities? Is it right for a company to be subjected to the constant potential fear that its fundamental business structure is based upon a patent that is owned by a company of less than 10 employees to which they may be forced to pay more than several hundreds of millions of dollars? With what specificity must a patent defined? How broad can a patent be?
As the amount of resources being spent on litigation over patent infringement grows, it points to the insufficiency of patents and the patent process to protect the interests of both the claimants and the defendants in the cases that are emerging. Perhaps it is the changing of the times that is dominant factor in displaying the shortcomings of patents. It might be just as likely that there are problems with the underlying principles that have formulated the patent process. Regardless, it seems that some patent reform is necessary for dealing with the modern onslaught of litigation that is finding its way into the courts. There is already some talk regarding patent reform with H.R. 1561 a House of Representatives bill aimed at refining the patent process. While this may raise costs and put more money into the Patent and Trademark Reserve Fund, it is uncertain that this reform will cut to the heart of the matter.
