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Exclusive with Ray Niro: The Man They Call the Patent Troll


Written by Gene Quinn
Patent Attorney & Founder of IPWatchdog, Inc.
Principal Lecturer, PLI Patent Bar Review Course
Posted: July 23, 2013 @ 8:00 am

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Ray Niro

On July 1, 2013, I spoke on the record with Ray Niro, who is one of the most well known patent litigators in the United States. Throughout his career he has been a champion for the inventor who was facing long odds due to widespread patent infringement. So loathed was Niro, he was the one who was originally referred to as the “patent troll” by the media due to his representing innovators against giant technology companies. Of course, if you are going to call Ray Niro a patent troll you might want to also point out that he is extraordinarily successful, which means he has been very good at proving that large corporations have infringed valid patents, sometimes on fundamentally important innovations.

What follows is the final segment of my interview with the man they call the patent troll, Ray Niro. To read part 1 see In Defense of Innovators: An Exclusive Interview with Ray Niro.

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QUINN: This goes back to a point you brought up at the beginning I wanted to get back to; they’re sending jobs overseas and people in China are making stuff and they’re importing it into the U.S. I mean, I’m not sure how that is any different than an inventor or a small research and development company that innovates and then licenses it so that others can make it. That seems to be their model.

NIRO: Well, Hewlett-Packard’s a good example. Hewlett-Packard created a company that would license and enforce its patents,many of which are in fields in which they are not practicing. And that entity is not called a troll, but it’s a non-manufacturing entity. And it’s collected sizable sums of money from licensing of the technology. But you don’t hear a word of criticism for that kind of thing. IBM, Texas Instruments, General Electric are all companies that make substantial sums of money from the licensing of patents in fields and with respect to technology for which they don’t manufacture a product. So what’s going on is you’ve got a double standard. If you’re a big company, it’s okay; but if you’re a small individual inventor, it’s not. That makes no sense.

QUINN: Right. It doesn’t make any sense to me either. And I would even go the next step and I’ve written a little bit about this is that companies like Apple are non-practicing entities as well. I know that Apple has a lot of stores and they sell their gadgets. But is their business model really that different a business model? Is it really different to innovate and then have folks in China make it for you to sell? Is the fact that you were the one that’s ultimately selling it, is that the hair that they’re trying split? Because in the independent inventors scenario they do their research and the development and they patent it. Then they license it to another company who then makes it and sells it. So the business models are different by a slight degree. I just don’t get the animosity towards people who we’ve always celebrated. Independent inventors, university researchers, research and development companies. I mean are we really at the point where Thomas Edison would be a patent troll? That question gets asked a lot and I think up until over the last, maybe over the last few months it had always been sort of a tongue-in-cheek question, like you can’t be serious. But now where this is headed is Thomas Edison would clearly, clearly be considered a nefarious actor if you listen to these West Coast elite companies.

NIRO: Absolutely. In fact, the Wright Brothers would be a classic example. The Wright Brothers invented the airplane. But, they didn’t have the resources and talent, maybe, to manufacture it. So a guy named Curtis came along and he started manufacturing the airplane using their ideas. Using their inventions and they brought patent suits for, I don’t know, eight or nine years before they ultimately prevailed. The Wright Brothers prevailed. They would be a classic troll today. Here they are preying on a manufacturing company for infringement of their patents while they manufacture nothing. Now, without the incentive of the patent system to create that invention in the first place, Curtis doesn’t have anything to copy. He doesn’t have the blueprint from the Wright Brothers. They would be a troll. Think of how ridiculous this whole thing is and put it in context — and I’ve heard this analogy frequently — suppose you were a composer that wrote a song but you couldn’t perform. Would you be deprived of the right to license your music because you couldn’t sing? You couldn’t perform? One of my favorite song writers is Burt Bacharach. He’s a terrible singer. But you know what? He writes great music. He should not be deprived of the opportunity to have his music performed and to have protection under the copyright laws because he’s incapable of performing himself. That same concept, it seems to me, applies to patents as well.

QUINN: Well, that’s interesting because I’ve long known this to be true in the music industry. The people who make the real money in the music industry are the writers and the people who own the copyrights. It’s not the people who are the performers. The performance rights makes people money, but it doesn’t make them long term money the same way that the people who own the copyrights and the rights to music and there’s all kinds of people that will write music for other people. And are they copyright trolls for doing that?

NIRO: Well, I guess they would be copyright trolls. But you know, take it a step further. There is so much noise being made about Ma and Pa shops and Wi-Fi patents and people being harassed for $5,000 or whatever. Just like the McDonald’s hot coffee case was used against personal injury lawyers. Look at ASCAP, what did they do as an organized group of composers? You know what they do? They go to the Ma and Pa shops, the bars, whatever, and they say, “If you don’t pay the royalty that’s necessary, we’re going to sue you for copyright infringement.” But that seems to be okay.

QUINN: Well, actually the only difference would be is that it affects far more people. I mean every restaurant, every barber shop, every establishment that has a radio on and is maybe not using just a small boombox but is using a sound system that’s larger than what you would normally see in your home can have somebody from these music licensing outfits show up and say hey you’ve gotta pay.

NIRO: Right.

QUINN: So it’s a much larger problem.

NIRO: Right. In the trademark arena the same thing has taken place for years. Coca-Cola was well known for going into small establishments, sending shoppers into small Ma and Pa shops and saying, “I’d like a Coke” and, the minute the person gave them a product without saying, “We don’t have Coke; we sell Pepsi,” they’d get sued for trademark infringement. Anyhow, this is part of what intellectual property is about. You should have the right to license and enforce your rights against big or small.

QUINN: Yeah. And it should be across the board. The thing that bothers me about this whole debate is that it isolates and discriminates. But going back to one cynical view, going back to the copyright analogy, is another difference there is not only is it more prevalent but it would seem that those people probably many of them have a better relationship with the White House than probably independent inventors do. And that’s extremely cynical but the more I see about what goes on inside the beltway – if you’re not connected, if you don’t have the money to be connected or you just are not through political affiliation or philosophy connected you really get screwed.

NIRO: Well, one of the cases that’s received a lot of attention is this Innovatio which happens to be a case two of the lawyers in our office are handing. But amidst all the hoopla about how terrible it is that they’re out there enforcing patents in the Wi-Fi arena, what is lost in this discussion is that these patents come from Broadcom, a manufacturing company, just like Cisco. And those patents were licensed to the tune of nearly $1 billion, I think $900 million to QUALCOMM after a history of litigation. These aren’t so-called crummy, lousy, frivolous patents. These are serious patents. So again I think you have to go beneath the propaganda and look specifically at the instances where actions are being taken. I agree there are situations where there have been abuses, no question about it. And those can be addressed, and should be addressed. But let’s not, in this hysteria, wind up punishing people that have no reason to be punished. And let’s not create a disincentive for innovation in our country. The big debate during the election, again and I don’t want to politicize this either, was jobs. How do we create new jobs in America? Well, you don’t create new jobs in America by shipping 700,000 jobs to China, like Apple did. You create new jobs in America by creating opportunities for new businesses to be built on the basis of our ideas and our innovations. And when we create disincentives for that happening, we’re undermining the very thing that we want to be doing, which is creating jobs based on our ideas because we have long since stopped being an industrial society. We’re an idea-driven society, period. We don’t have the factories that we once had. We don’t have the businesses that we once had. What we have are ideas. And we better encourage innovation. We better encourage new ideas. And my big fear is that is what the West Coast boys — I wanna call them the West Coast boys– are doing. They are creating this hysteria. They’re creating this propaganda. They’re creating this aura of inventors and small entities being villains. And they’re selling that tune at the highest levels of our government, both to Congress and to the Administration and, unfortunately, to some judges. And that’s scary.

QUINN: Yeah. It also seems short sighted, too because they folks have spent a lot of money acquiring patent portfolios themselves that they say that they would rather not have to have acquired and they’re defensive in nature, et cetera, et cetera. But it’s extremely short sighted because if they’re going to succeed in this and weaken the patent system the way that the patent system has been weakened really ever since the eBay decision by the Supreme Court there’s going to come a day when they’re going to look around they’re not going to have the ability to prevent anybody from doing anything. I think when that happens they’re going to really regret some of these decisions, or at least their shareholders are going to regret them.

NIRO: Sure they will. Because if we don’t have a strong patent system, who’s going to stop the wave of foreign importers that are going to come in with their copycat products? And then all of a sudden you’re going to hear these same companies saying, well, we need a strong patent system to protect ourselves from these evil foreign companies that are bringing in products that copy our products. Debate’s a good thing, hysteria is a bad thing, propaganda’s a bad thing. I think what we’re seeing way too much of is hysteria and propaganda and way too little of genuine analysis and debate.

QUINN: I agree with that. Now getting back to the whole Wi-Fi issue again, I travel a lot on business, as I’m sure you do. And you go to these hotels and you get a varying degree of either okay, marginal, or bad Internet access at hotels. But, boy, they’re not afraid to charge you for an hour or for 24 hours. If you go to some classy hotel in a major city you’re lucky to get for $16 a day Internet access that’s barely good enough to check your email.

NIRO: Right.

QUINN: So somebody is making a ton of money on Wi-Fi. Look at all the coffee shops, all these businesses that have sprouted up. You can’t hardly go about your day without seeing Wi-Fi promoted. People should pay attention how many signs they see in a day where a business establishment will say “Wi-Fi available here.” If they’re advertising that it’s because they think it’s important to attract people.

NIRO: Sure.

QUINN: And it is. It is. We go out to dinner and my wife will a lot of times complain, oh, well, there’s no Wi-Fi here. You can’t get on your cellphone and maybe check movie times or what have you. It’s an incredibly important innovation. Are we at the point where these incredibly important innovations are going to create animosity rather than celebration?

NIRO: I think that’s a good way to put it. I think we are at a point where, if you believe the propaganda, then the remedies that are being proposed are really going to be detrimental to innovation,to individual inventors, and to the opportunities to use invention to create new jobs. So I see lots of negatives. If people really believed there was support for this notion that development of new products has been slowed or the cost to consumers has been increased or that the judicial system is clogged or, incredibly, this nonsense that contingency lawyers select marginal cases to bring lawsuits, I would support what’s going on. The “select marginal cases” argument is the most absurd proposition I have heard. And it could only be proposed by people, frankly, that have never represented a client on a contingency, because the last thing in the world that a good contingency lawyer wants to do is to pick a lousy case and pursue that. Now, are there lawyers that might pick lousy cases because they don’t have the opportunity to pick good cases? Yeah, I think that’s possible. But I think that is the exception, rather than the rule.

QUINN: So what do you? What do you think the answers are? Do you have any call to action for people who are interested, for small businesses, startups, independent inventors? What can they do?

NIRO: Well, what we all can do is try to weather this storm. Try to petition government to make a stronger Patent Office, a more efficient Patent Office, a better Patent Office to improve the quality of patents. And it’s not as easy as the President makes out. Giving a directive to examiners not to issue overly broad patents. If that isn’t absurd, I mean, what are we talking about? Of course they already have that mandate. They know they’re not supposed to issue patents that are overly broad in the sense of not satisfying the statutory criteria of novelty and non-obviousness. Who is writing this script? Idiots. It’s crazy.

I see a view emerging that, if you’re an NPE, then it follows that your cases are frivolous. If your case is brought on a contingency basis, then your case is frivolous. That’s what these guys are really saying. I’m going to be an optimist here. I think that this storm will be weathered because I believe that, in the end, fair-thinking people are going to realize the harm that can be done if we go down this destructive path we are on. And, hopefully, we will tune out these special interest groups, like Cisco, et al., that are creating the hysteria. At least that’s my hope.

QUINN: Well there is some historical precedent for that. The pendulum seems to constantly be swinging in the area of patents and innovation throughout our history. Although when you’re in the middle of the hurricane and the winds are collecting, sometimes it doesn’t seem like you’re going to get to that other end.

NIRO: It sure doesn’t. And, you know, looking at the bright side of things, I believe that the pendulum will swing. I believe it will come back. I believe fair-minded, reasonable people are going to realize there is no data to support these anti-NPE, anti-inventor arguments and, maybe, the political process will wake up and do the right thing for a change. At least that’s my hope. Historically, it seems that’s what’s happened. But, as you correctly point out, when you’re in the eye of the storm, things don’t look so good. And right now, they don’t look so good.

QUINN: No, no. It reminds me what Winston Churchill has quoted as saying: eventually America will do the right thing after having exhausted every other possible option.

NIRO: [Laughter] Yeah, right.

QUINN: I guess maybe that’s the optimism that we have to hold onto because those of us who are in the industry – we know what it means to these independent inventors, to the research companies, the startup companies who need venture capital, and increasingly to universities, too. A lot of these researchers want to be able to license what they’ve come up with, to fund further research. And it really does matter to the economy and I certainly hope that message gets across.

NIRO: Well, I think blogs like yours certainly help. There’s a voice, and there is an opportunity hopefully to be heard. But can it defeat hundreds of millions of dollars paid to politicians? Probably not. As a friend of mine told me, “You’re on a row boat in the middle of the ocean.” True. But, as I reminded him, it only took one stone for David to defeat Goliath.

QUINN: Well, thanks again Ray, I really appreciate it.

NIRO: Well, thank you, Gene. Thanks for the opportunity. I appreciate it.

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Posted in: Gene Quinn, Interviews & Conversations, IP News, IPWatchdog.com Articles, Patent Troll Basics, Patent Trolls

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

24 comments
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  1. You’ve got the whole troliing business misunderstood. If I invent a widget but don’t manufacture it, and subsequently enforce my rights (i.e, expect a return on my R&D investment) I’m not a troll. But if I buy up a bunch of patents from people – maybe from bankrupt companies, even – just to search out manufacturers and tell them “you are infringing – it’s cheaper for you to settle out of court without making us prove the infringement or validity of the patent” – Then I am a troll and deserving of all the derision and scorn poured on my head.

  2. deserving of all the derision and scorn poured on my head.

    Unless, of course, the action is fully legal and comports with the long tradition of alienability of property (and in fact, a reasonable case of infringement does exist).

    You may not like this action, but deriding it and attack by pure ad hominim (ask yourself who coined the term “Troll” and more importantly – why – it was NOT for the good of the public).

  3. …is not a well-reasoned and balanced response.

    Note that this falls directly in line with other comments about the propriety of using the courts to enforce patents – that’s how patents are enforced. Yes, there does exist leverage to settle for less – but that is ONLY leverage – you have a choice. This is just another business risk – no more or no less.

  4. “You’ve got the whole troliing business misunderstood. If I invent a widget but don’t manufacture it, and subsequently enforce my rights (i.e, expect a return on my R&D investment) I’m not a troll. But if I buy up a bunch of patents from people …Then I am a troll and deserving of all the derision and scorn poured on my head.”

    If the inventor didn’t sell his patent to a “troll” and there is an infringer, then the inventor would likely find a contingency attorney (such as Niro) to enforce it anyway. I’m not sure why one is really more burdensome for the defendant than the other. How is a “patent troll” different from a company like this http://www.crashcashnow.com/ which buys peoples personal injury lawsuits and then sues on them. One way or another the plaintiff (either in a personal injury suit or a patent holder) is going to find a contingency lawyer to help with their case.

    A lot of bad press is attributed to “trolls” for enforcing patents of questionable validity. Maybe there is some truth to this, but I don’t find this argument to be persuasive now because there are now mechanisms like Inter Partes Review and Post Grant Review so the USPTO will take a further lock and invalidate any patents that are of questionable validity. If you are hit with an infringement lawsuit and you feel the patent is frivolous and they are just trying to exact a settlement on you, file an IPR. I don’t think these non-practicing entities are really such a huge problem as many people think they are.

  5. I’m being mis-understood here. I have no problem with patent holders who engage the assitance of attorneys to enforce their rights. The problem is with people whose business model is to buy patents and then look around for someone to sue for infringement. Sure, its legal, but it’s an abuse of the system.

    Patentleather asks, how is a patent troll different from companies like “crashcashnow” ? I don’t know, I can’t see a difference. By the way, which side are the comments from? the attorneys or the inventors?

  6. No misunderstanding Benny. You are simply incorrect that such is an abuse of the system.

  7. Benny,

    1) Why should an inventor necessarily need to enforce his rights? Perhaps he/she is better at recognizing problems and inventing solutions rather than policing others.

    2) Why should we take away the option for small inventors to liquidate their assets (such as patents)? Others may be better at manufacturing and selling his property rights may allow the small inventor to get back to further inventing. In other words, by selling his/her patent rights they recoup “a return on R&D investment” as you say.

    3) Why should we give large corporations yet another advantage by requiring small inventors to manufacture their inventions? Do some homework and take a closer look at how large corporations operate – they don’t need anymore tricks up their sleeves.

    And be honest in your answers.

  8. Benny say: “The problem is with people whose business model is to buy patents and then look around for someone to sue for infringement.”

    So AT&T and Cisco (as well as many others) are trolls I guess. They sell their patents to middlemen (reportedly) who then transfer them to trolls for the purpose of suing competitors.

  9. Patent Leather and Benny – I think you are assuming that there is some egregious enough version of an entity labeled as a “patent troll” that our noble representatives will craft wise legislation to curtail without harming anyone else. The fact is that the term “patent troll” is thrown around pretty loosely by those being sued for infringement, and often individuals who bear no resemblance to anything you might consider a “troll” are so labeled. The real story is that the concept of “patent trolls” is being used by vested interests as part of a larger campaign to push for legislation that will make it much harder for independent inventors with significant inventions to sue for infringement. The end goal of the larger campaign is to make it virtually impossible for an individual with a significant invention to protect his intellectual property. For anyone who cares about America, this should be a huge issue.

  10. Niro: “You know what they do? They go to the Ma and Pa shops, the bars, whatever, and they say, “If you don’t pay the royalty that’s necessary, we’re going to sue you for copyright infringement.” But that seems to be okay.”

    I wonder how many “ma and pa” bars Ray has gone into and asked the owner what they think about the fees being charged to them by ASCAP. None of the “ma and pa”‘s that I know think there is anything “okay” about it.

    Is that where Gene and Ray want to take us? Some wonderful future where bars and restaurants are asked to pay yet another middleman yet another fee to cover all the licensing fees owed to the Business Method Inventor Club of America?

  11. Okey Dokey-

    Obviously you didn’t understand what Ray and I were discussing. Furthermore, your view of the world and innovation is extremely limited and extraordinarily naive.

    First, there is nothing wrong with copyright owners, trademark owners and patent owners legitimately enforcing rights that are infringed PERIOD. To the extent a problem exists it is with respect to litigation abuse.

    Whether you like it or not, in our industry no one seriously criticizes ASCAP or BMI (for example) when they go to Mom and Pop shops asking for royalty payments. So when Ray says “But that seems to be okay…” he is clearly referring to the sentiment in the industry.

    The reality, however, is that there is nothing different conceptually between non-practicing entities and a copyright owner or industry organization (like ASCAP or BMI) asking for royalties from Mom and Pop stores. Yet one is vilified in the media and the other is not even questioned in the media. Why? Probably because the media is owned by the entertainment industry so they turn a blind eye toward whatever potentially questionable conduct arises relative to copyright abuse.

    Similarly, Coca Cola and many trademark owners send cease and desist letters to Mom and Pop organizations, but they are not criticized either.

    There is a double standard. It is OK for copyright owners and trademark owners to aggressively police their rights but it is wrong for independent inventors to do the same thing. That is intellectually dishonest plain and simple.

    Finally, why shouldn’t they pay royalties to the owner of the WiFi patents if they are infringing? Why should bars and restaurants offering WiFi be able to ignore patent rights and free ride on innovation? That is asinine! They have every right to choose not to offer WiFi, which is what they had better choose to do unless they plan on paying for the right.

    -Gene

  12. The “tea party” or similarly conservative political groups should be the natural allies of a pro-patent political movement, to counter the anti-patent lobby. The patent system has deep Constitutional roots, rewards individual initiative, and encourages private enterprise, all of which coincide with conservative political values. Unfortunately most free-lance software developers have more of a socialistic orientation. Somehow they need to be persuaded that the patent system can actually empower and protect them. But many have the naive view that if they write clever code the world will beat a path to their door, including lucrative job offers from the major corporations that in reality are merely exploiting them and will cast them off as soon as the next generation of programmers emerges. Somehow the information age has not grasped the value of IP the way that former technological eras did.

  13. Ron – The Tea Party should be a huge ally against the anti-patent group, but they did very little to stop The America Invents Act. Of numerous conservative radio talk shows that I followed, there was almost zero mention of this issue. The only conservative talk show host I know of who fought this legislation was Phyllis Shlafly, and I don’t think her show has that large a following. Rand Paul consistently voted against the bill, but very few others did. In the final vote in the Senate, the numbers were something like 85 to 10.

    There was a lot learned from this utter defeat. First, when an issue is in any way complicated and not closely related to the average voter, misinformation can be used very effectively to sway public opinion and reduce any opposition. Secondly, politicians are too closely tied to large companies, and only the staunchest Tea Party members will apparently put ideals above political connections. Thirdly, when an issue doesn’t directly involve the average voter, there are often very few organized groups that will oppose it, and vested interests will go to great lengths to compromise such groups.

    But you are right. The Tea Party should be the best bet for fighting this issue.

  14. There is a huge difference between the Wright brothers and the trolls Ray represents, and Ray knows it. There is no real dispute that the Wright’s airplane was truly ground-breaking, with nothing like it before they invented it (except things that flew with little or no control, and were likely to crash). Ray’s “inventors”, on the other hand, invent things like “improvements” to the screws used to attach the tail skid to the Wright flyer, then seek a royalty on the whole plane.

  15. Anon2-

    Check your history. There is indeed doubt about whether the Wright Brother’s were the first to achieve powered flight. In fact, those who have researched the question have found clear evidence that the Wright Brother’s were not first, although they were able to control flight first.

    http://hallingblog.com/wright-brothers-didnt-invent-the-airplane-and-edison-didnt-invent-the-light-bulb/

    http://www.dailymail.co.uk/sciencetech/article-2327286/The-Wright-Brothers-NOT-fly-plane–German-pilot-beat-years-earlier-flying-car-claims-leading-aviation-journal.html

    This doesn’t make what they did any less incredible or noteworthy, but holding the Wright Brothers up to ridicule Ray Niro and his innovator clients is simply not fair when you are going to misrepresent what the Wright Brothers accomplished.

    Further, as you bash Ray I notice you don’t mention the inventors of Wifi, who he represents. Likely because the Wifi patents are some of the most thoroughly litigated patents ever, have time and time again survived invalidity challenges and represent ground-breaking innovation.

    Let’s try and keep it real.

    -Gene

  16. Gene:
    I didn’t say the Wright brothers invented the entire airplane, and I know (as you can readily discern from my post) that others were “flying” some contraptions around, but with no control and many crashes.

    Further, to say that I “bash” Ray, or ridicule him is pretty strong given what I actually said. But you have not changed my mind one bit. Ray may have “innovator clients” as you say: I don’t know all of his clients. But if so, he certainly also has clients that invented things like screws that hold tail skids, or simply patents that are asserted far, far beyond what was actually invented and beyond what would even be possible to implement in the accused technologies.

  17. Anon 2-

    How many cases has Ray Niro and his clients lost? How many patents have been invalidated? I mean if you are going to assert that he and his clients are asserting the rights “far, far beyond what was actually invented” don’t you think you should need to back that statement up?

    Maybe you think it is proper and polite to say that an attorney and their clients are asserting patents “far, far beyond what was actually invented,” but that quite clearly is bashing by any reasonable definition.

    As far as the Wright Brothers are concerned, your caveat was interesting indeed. They came up with something completely revolutionary with nothing like it ever before… except for the stuff that was like it before.

    I guess the thing that you fail to realize is that even great inventors like the Wright Brothers and folks like Thomas Edison have improved upon what has come before. Improvements can be exceptionally important and pretending that incremental advances are not worthy of redress when infringed seems rather ridiculous to me.

    Certainly, if it is an incremental advance that should be relevant to damages. And if anyone is asserting patents that go “far, far beyond” what is fairly covered and legitimately valid that is a problem. But I don’t know of any case where Ray or his clients have been charged with patent misuse, which is what you describe. Has it even ever been raised as a defense?

    -Gene

  18. Gene:

    An improvement implies that you made a working product better. An airplane that has no operable control system, and that crashes, is not a working product at all. It is an unsuccessful attempt to do something new. The Wright’s controllable airplane was a pioneer invention if there ever was one — I don’t think anyone seriously disputes that.

    Also, charging or succeeding in a charge of misuse is not the measure of whether a patent is asserted beyond its scope. Carl Cooper knows that.

  19. Anon2-

    You say: “An improvement implies that you made a working product better.”

    Not in the patent sense. An “improvement” is something that is novel and non-obvious. There is no requirement that it actually be better or superior in any way.

    You say: “An airplane that has no operable control system, and that crashes, is not a working product at all. It is an unsuccessful attempt to do something new.”

    If you are speaking in the general, unsophisticated sense about the masses you are correct. If you are speaking about the viewpoint of scientists, engineers and those in the patent community you are again incorrect. First, something that works no matter how crudely can be patented. Second, something that works crudely is almost always an indispensable step toward an embodiment that works as intended. Third, are you forgetting what Thomas Edison said and we all know to be true about even apparent failures not being failures at all given that we now know at least something that will not work as desired?

    You say: “The Wright’s controllable airplane was a pioneer invention…”

    I suppose if you define the parameters narrowly enough everything is a pioneering invention. Of course, if you want to say that the Wright Brothers airplane is a pioneering invention you have to agree that the invention of Wifi is a pioneering invention. I wonder which patent attorney represents those pioneering inventors? Oh… wait… it is Ray Niro. Huh? Shocking!

    You say: “charging or succeeding in a charge of misuse is not the measure of whether a patent is asserted beyond its scope.”

    This is nearly laughable. If you cannot legitimately charge patent misuse then the patent is not being asserted “far, far” beyond its scope, as you alleged Ray Niro does. You obviously need to bone up on the law of patent misuse. A couple years old, but this will help you better appreciate the issue:

    http://www.ipwatchdog.com/2011/11/18/patent-misuse-exploring-the-basics/id=20460/

    -Gene

  20. Improvements, even small ones, are and should remain patentable as long as they are novel, non-obvious, useful, etc. However proving patent misuse is a high bar, and defendants often opt to settle with the patent troll for a nuisance amount rather than get drawn into a very expensive, difficult legal action. In general, I would like to see a lower bar for antitrust in general, to put the patent owner and defendant on more of a level playing field in terms of legal costs. It is so inexpensive and easy to file a frivolous patent infringement suit, whereas the antitrust defense is one of the most difficult and expensive legal undertakings, with a substantial risk of backfiring against the defendant. Even hinting at an antitrust issue can get you into legal trouble, let alone actually using it in court as a defense.

  21. So . . . an improvement is something that is not “better or superior in any way”; the Wright flyer was not a pioneer invention; and patents are rarely, if ever, asserted far beyond their true scope, otherwise there would be many more assertions of misuse.

    Got it. Thanks for helping me “bone up”.

  22. Anon 2-

    I’m really growing tired of you. Everything I said was 100% correct and you have been wrong from the start. The fact that you are unwilling to assert patent misuse as a defense is a YOU problem. You know it all litigators raise every frivolous defense you can think of and engage in your own brand of abusive patent litigation tactics, so why not try and actually raise something that could succeed? Is it because what you said here was a gross exaggeration, or are you too afraid you might prevail too early in the case and not bill the client enough?

    Further, how you can claim to know anything about patent law is astonishing. The fact that you don’t know that an improvement does not need to be superior in order to be patented is mind blowing. How did you ever make partner? Is complete and total lack of knowledge of patent law a pre-requisite these days? God help your clients!

    Now for the real reality check… if you want to continue to post comments on IPWatchdog.com you will need to lose your condescending attitude, refrain from naked and conclusory defamatory statements and start to be objectively correct. If you cannot handle this then please go elsewhere. There are plenty of places you can take your lack of knowledge and spew ridiculous nonsense.

    -Gene

  23. Hi Gene,

    Any plans to post an update since the recent setback suffered by Niro in the Innovatio case? Sure, it’s all part of the machinations of patent law. But he held that up as a shining example. And then the court essentially set the value of those patents at ~ 1% of what Innovatio was asking.

    Interesting times, regardless of where one comes out on this issue.

    –B

  24. Boyce-

    I think the Innovatio case you are referring to is a district court case, correct? I’ve been a little out of it lately as I’ve battled through bronchitis. Back to a regular routine now largely, although still the residual cough and not even close to ready to restart working out. I’ve also been spending more time looking at the pending patent reform legislation, and then getting together ethics materials for a presentation next year (deadline for materials is this Friday). So much going on in the industry.

    Do you have a citation?

    Thanks.

    -Gene