Nocera and Collins

In “The Patent Troll Smokescreen” Mr. Nocera moans that legislative “reform” is hurting legitimate inventors.  He’s raked over the coals in the comments by people who actually work in patent law and/or hold patents.  Ms. Collins says “Happy Birthday, Hillary Clinton,” and asks who would guess that a Republican-led investigating committee would deliver one of Mrs. Clinton’s best presents?  Here’s Mr. Nocera:

Is the University of Wisconsin-Madison a patent troll?

The question is not as strange as it might seem. “Patent trolls” are entities that own patents that they use not to further innovation or manufacture a product but to conduct a kind of legal extortion racket. Holding patents that are sometimes absurdly vague, they send “demand letters” to the thousands of companies that use, for instance, bar scanners — to cite a legendary example — accusing them of patent infringement.

Many companies pay a fee to avoid litigation, but others decide to stand and fight. Sometimes they win; sometimes they lose. In either case, patent trolling is sand in the engine of commerce.

Now consider the University of Wisconsin-Madison, or more precisely, the Wisconsin Alumni Research Foundation (WARF), which owns the university’s patents. Whenever the university’s scientists come up with innovations — which they rarely intend to use to manufacture a product — WARF applies for a patent and then seeks to license it, just as trolls do.

In higher education circles, WARF is known as a fierce defender of its patent portfolio. Just like the trolls, it does not back away when it believes companies have infringed on its patents, and it will litigate those claims if need be.

But, of course, nobody thinks a university is a patent troll. Universities are supposed to come up with new ideas, not manufacture new products. That’s what companies do. If a university holds a scientist’s patent, the main way it gets the innovation into the hands of a company is through a licensing agreement. Robin Feldman, a University of California Hastings College of the Law professor known for her anti-troll views, notes that the law specifically gives universities the right to seek patents on federally funded research. Why? “To encourage the commercialization of new products.”

But what if, in the name of cracking down on trolls, Congress passes an anti-troll law that winds up having huge negative consequences for legitimate inventors? What if a series of Supreme Court rulings make matters worse, putting onerous burdens on inventors while making it easier for big companies to steal unlicensed innovations?

As it happens, thanks to the 2011 America Invents Act and those rulings, big companies can now largely ignore legitimate patent holders.

Of course, they don’t call it stealing. But according to Robert Taylor, a patent lawyer who has represented the National Venture Capital Association, a new phrase has emerged in Silicon Valley: “efficient infringing.” That’s the relatively new practice of using a technology that infringes on someone’s patent, while ignoring the patent holder entirely. And when the patent holder discovers the infringement and seeks recompense, the infringer responds by challenging the patent’s validity.

Should a lawsuit ensue, the infringer, often a big tech company, has top-notch patent lawyers at the ready. Because the courts have largely robbed small inventors of their ability to seek an injunction — that is, an order requiring that the infringing product be removed from the market — the worst that can happen is that the infringer will have to pay some money. For a rich company like, say, Apple, that’s no big deal.

What got me thinking about this was, in fact, a recent lawsuit between Apple and WARF over a University of Wisconsin innovation that Apple uses to help speed the processing time of several versions of the iPhone and iPad. Apple not only couldn’t be bothered to license the patent; it wouldn’t even let WARF in the door to negotiate. Instead, Apple sent the foundation a link to a page on the Apple website, which says that the company can lay claim to any unsolicited idea. So WARF sued. What choice did it have?

Last week, a jury ruled in WARF’s favor and then ordered Apple to pay some $234 million. Although I hear that WARF is pleased with the outcome, Apple is actually the big winner. Thanks to efficient infringing, WARF never had the chance to grant an exclusive license to an Apple competitor, which could have hurt Apple while maximizing WARF’s financial gain. WARF had to resort to expensive litigation to get what it should have been able to achieve through less expensive negotiation. And, of course, $234 million is pocket change for Apple. This is “patent reform”?

There are new patent reform bills in both the House and the Senate that are once again allegedly aimed at trolls — but will, once again, effectively tilt the playing field even further toward big companies with large lobbying budgets.

“This is not about trolls,” says Brian Pomper, the executive director of the Innovation Alliance, which supports inventors. “Trolls are a fantastic narrative for companies that want to get their patents cheaper.” The recent changes in patent law also show “how big companies can use Washington to get a business advantage,” he added.

For the sake of real innovation, and in the name of the small inventor, who holds a special place in America’s mythology, the pendulum needs to start swinging in the other direction.

Now here’s Ms. Collins:

Monday is Hillary Clinton’s birthday. Don’t bother sending a gift. This week has given her all the presents she needs.

What a time she’s been having — the debate, Joe Biden’s non-candidacy announcement and then the total meltdown of the Benghazi Committee. It’s not often these days that a special House investigatory committee makes Democrats sing, but there you are. In a speech on the House floor, Representative Steve Israel claimed Thursday’s marathon inquisition had been like an “I Love Lucy” episode — “same plot, same characters, same script and nothing new.” This seems totally unfair to Lucy. Remember the one with the candy conveyor belt? Vitameatavegamin? How many of you think that 63 years from now, anyone will be saying: “Remember the question about Sidney Blumenthal’s email?”

Heck of a run for Clinton. And to top everything else off, Lincoln Chafee withdrew from the president’s race, leaving the field wide open for her to grab that metrics issue and run with it.

Things have been going so well, it’s impossible not to think a disaster is looming. Pop quiz – Hillary Clinton’s next headache will be:

• Revelation that she kept a secret flock of State Department carrier pigeons.

• Revelation that Justin Bieber is an old family friend with whom she corresponds regularly.

• Revelation that major donors to the Clinton Foundation have included El Chapo and Lance Armstrong.

• Revelation that during long family car trips, Clinton’s dog Seamus was kept in the trunk.

• Oh, I don’t know — something about Bill.

But let’s get back to the birthday. Clinton will be 68. There was a time when it seemed as if her age might be an issue. After all, we’ve only had two presidents come into office when they were 68 or beyond. One of them was Ronald Reagan and the other was William Henry Harrison, who did not do future 68-year-old candidates any favors by dying one month after the inauguration.

Last year the Wisconsin governor, Scott Walker, chortled that he “could run 20 years from now for president and still be about the same age as the former secretary of state is right now.” Which, as it turned out, was a lucky break for him. See you in 2034, governor.

Now, the major candidates on both sides are in their 60s — except for Ted Cruz and Marco Rubio, who are 44, and Bernie Sanders, who is 74. Donald Trump is older than Hillary Clinton, although of course when we talk about the possibility of a Trump presidency, age is about the 4,353rd topic of concern.

It’s not that age no longer matters, but that we’ve come to realize it hits different people in different ways. Some lose energy and focus, while others seem to get smarter and stronger. Justice Ruth Bader Ginsburg of the Supreme Court, at 82, does push-up routines with her trainer. Gloria Steinem celebrated her 80th birthday riding an elephant in Botswana.

In high-end politics, what we need to know is less about calendar years than staying power. Marco Rubio keeps talking about “generational change,” but he seems to have less energy than a koala. (Koalas sleep 18-22 hours a day. I am bringing this up so you can’t say I never teach you anything.) Really, where is that man? He hardly seems to be campaigning and he misses nearly half the Senate votes. Pre-millennials, is this the guy you want representing you?

Meanwhile, Clinton wowed the country with her endurance during this week’s Benghazi hearing. If we remember the House Select Committee on Benghazi at all, it will be as the folks who gave Hillary a chance to demonstrate her staying power. Even accounting for breaks, 11 hours of questioning must be close to some kind of record.

“Yoga always helps,” Clinton said as she departed.

She is — except for the part about yoga — a throwback to the first era of American public women, people like Elizabeth Cady Stanton and Susan B. Anthony, who came into their own in late middle age. Stanton, who like Clinton had an ability to make herself nap at will, kept promising the impatient Anthony that when her kids grew old enough to fend for themselves it would be exactly the right time for their great campaign for equal rights. “We shall not be in our prime before fifty, and after that, we shall be good for twenty years at least,” she assured Anthony. Actually, both of them were good for quite a bit longer, and still giving speeches at 80. Justice Ginsburg has a picture of Stanton in her Supreme Court office.

Clinton will be having a birthday party on Sunday in New York, and naturally it will be a fund-raiser. That sounds like the worst possible way to celebrate, but if there’s anything we know at this point, it’s that she can take the stress.

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