Faculty Forum Online, Alumni Edition: The Problem with Patents

Hi. I’m Judy Cole, the executive
vice president and CEO of the MIT Alumni Association. And I’m delighted to welcome
you to this web production of the MIT Alumni Association. OK. Great. Hi everyone. I’m Wade Rausch, and
I’d like to welcome you to this Faculty Forum
Online, Alumni Edition, here on Google Hangout. Thanks for joining us today. The theme we’re going to
be talking about today is broadly intellectual
property law, as it is evolving
in the internet era. And we’re glad
you could join us. So I’m a technology
and science journalist. I’m a 1994 graduate of the
program in Science, Technology, and Society here at MIT. And I’m also back here,
in the STS program, working on some initiatives
relating to science engagement and science communication. And I think this is
about the ninth time that I’ve posted one of these
Faculty Forum Online, Alumni Edition, webcasts
for the association. It’s been really fun. And this is the
first time we’ve had a chance to engage in a
subject relating to patents and IP law, copyright,
and trademark, and these kinds of things. Obviously, MIT doesn’t
have a law school, but that doesn’t mean that
a lot of smart people who study economics or material
science or physics, don’t wind up teaching
at law schools and doing great
things in these areas. So we’re lucky to have three
alumni, this week, who are doing those kinds of things. And I’m going to introduce
them briefly, and let them talk about what
they’re up to these days. Before I do that though,
let me just remind you, this is an interactive forum. Which means that we’re
soliciting your questions. And once we’ve heard
from our panelists, we’ll be having a discussion
built around your questions. So there is a forum, right
below the video window, where you can type
in your questions and those will be sent
directly up to a spreadsheet that I can see here at my desk. So I’ll do my best to
relay those questions to the panelists,
as they come in. OK. So our first guest
today is David Abrams, who was a 2006 PhD in
Economics, from MIT. And is currently a Professor
of Law, Business Economics and Public Policy at
University of Pennsylvania, in Philadelphia. I think I’ll just
let David. jump in, and then I’ll introduce our
other two guests in turn. So David can you take
it away and tell us a little bit about what
you’re up to these days? And what your specific
research focus is, and what you teach,
that kind of thing. Yeah, absolutely. And just first thanks
very much Wade, for the chance to
talk to MIT alums. Always great to, virtually
at least, be back on campus. And also to share this with
my fellow panelists, Stacy and Tom. I’m looking forward
to the discussion. So I’m an Economics
graduate of MIT, and found myself ending
up in a law school. Which is a little bit
unusual, because I don’t have a law degree. But a lot of what I study
is very related to the law. Today we’re focused
on IP, and that is my major area of research. But I also do a
fair amount of work, and have done a fair amount
of work, that’s crime related. And then other, including some
corporate finance and a couple of medical related
papers, and that’s the beauty of being in a
law school for an economist, like me. And an empirical
economist, like me, is that it gives
me the opportunity to apply the economic
toolbox to a range of fields. But let me just
briefly describe some of what I’ve worked
on in the IP realm, and it’s really patents
that’s my focus with IP. So one big question is, and a
very basic question is, just about duration of patents. It’s really just,
over all IP incentives do longer patents actually
incentivize greater innovation? So I wrote a paper looking
at a change in 1994, where the US basically ended
up joining with the rest of the world– this was part
of a treaty that also formed the WTO and harmonizer
patent system– which caused a change, and
actually what’s important is, a differential change
in the amount of protection in patents across fields. Which allowed me to
look at whether there was an increase in patenting
activity in fields that got relatively more protection. And I found that it did. Now, whether it’s optimal
or not, we still don’t know. But that’s kind of one
step towards answering that question. A couple more recent
papers, I think are probably going to be more
relevant to our discussion today, have to do with how we
determine who gets a patent. Especially when
there’s a patent race. There’s a question– there are
two main standards, at least there had been, in the world. First, to invent. An individual who has
invented the item first, who can prove it by a lab
notebooks, or other methods like that. Or first to file. The individual who gets their
patent into the patent office first. The US had been the last
major country under the first to invent regime. And we switched over
to first to file, as part of the America
Invents Act, which is the last big patent
legislation that went to effect almost three years ago now. And a colleague of mine, Polk
Wagner, and I wrote a paper– using Canadian data–
to try to see what happened when they
made that switch. They were the last
big country to do so. And especially, we took
a look at the effect on small inventors. A concern about the
America Invents Act was that small inventors were
potentially going to be harmed. And we found that it
did actually in Canada, lead to a reduction in
patenting among small inventors. I’m going to mention
one more thing and then let my
colleagues speak as well. I’m also very hard at
work on a couple of papers having to do with NPEs– Non Practicing Entities,
also known as patent trolls, also known as PAEs– Patent Assertion Entities. And this is a really hot topic
nowadays, in the patent world. A lot of people think they
are the death of innovation. Some people think
they’re not so bad. And I am fortunate
to have a great data set that comes from some very
large patent trolls, which lets me look, in an
unprecedented way, at what they’re actually doing,
where the patents come from, where they get licensed to,
what their business model is. And ultimately, we’re
trying to find out what the effect is
on innovation when patent trolls enter markets. So let me pause right there. I’ve actually got another paper
on pharmaceuticals, as well, but I’ve gone on, I
think, too long already. So happy to talk more
about any of this. No, this is great, David. Thank you so much. So there is a big
echo on the line. I’m going to work around that. Thanks, David. So I’m hoping we can
come back to some of those issues
in the discussion. And I’m sure that– I can already see some of
the questions coming in relate to these patent
trolls, and NPEs or PEAs, or whatever you call them. And the America
Invents Act, I think it was, in some ways an
attempt to roll that problem back but may have backfired. It may be backfiring. So maybe that’s something
we can come back to. So I’d like to introduce
next, our second guest, who is Thomas Lizzie. Who is an adjunct professor
of law at Duquesne University, in Pittsburgh. And Tom has an SB in Material
Science and Engineering, from MIT. Tom, can you tell us about
what you teach at Duquesne? And I know that you also
have a law practice that focuses on internet law and
intellectual property law, is that right? Yes, that’s correct. In addition I’m the in-house
counsel for the ExOne Company. The ExOne company makes
three dimensional printers. And we were an early
licensee, and continue to be a licensee of MIT, for
the three dimensional printing technology. I’ve been teaching at Duquesne
for close to 15 years now. I taught all the various
intellectual property courses, and also taught internet
law for several years. So that’s pretty much
it for my introduction. OK, great. We’ll come back and have you
jump into the discussion then. Our third guest is Stacey Dogan,
who is a 1988 SB in Economics, from MIT. And now is a professor of
law at Boston University. And Stacey you’re doing
all sorts of things, and I can see from
the bike behind you that you’re a bicycle commuter. Which I heartily applaud. But just talk to us
about what you’re up to at Boston
University, and what your recent research has focused
on, and what you’re teaching. Great. So after many, many
years, I’ve actually been reconnecting a lot with
the MIT community, recently. So among my roles, as a faculty
member, I’ve got scholarship. I’ve got teaching. And then I’ve got
administrative initiatives. And one of the
most exciting ones, recently, is that I’ve been
working with some colleagues here at BU and at
MIT, on a partnership. In which our students,
working under the supervision of a clinical director, are
giving advice to MIT students on a whole host of
different issues. We actually have two
phases of the clinic. One of them launched
this year, and another will launch next year. The first phase is called
the Entrepreneurship and Intellectual
Property Clinic. And it’s giving advice
to MIT students who have innovations or
inventions that they’re interested in commercializing. And talking to them
about general strategy, entity formation, founders
agreements, and things like that. So it’s kind of corporate
transactional oriented. And then the next
phase is dealing with risks associated
with innovation, which happen all the time, at MIT. There have been a few
notable incidents, in recent years, where
those mischievous MIT kids have gotten
themselves into legal messes. And haven’t really
had representation. So MIT is really
interested in getting its students some good judgment
and good legal advice exante. So that they can try
to be aware of risks, try to reduce legal risks. So that one, the
second phase clinic, is going to be focused
on minimizing risks, and also on some policy
initiatives on law reform efforts. To try to minimize
the adverse impact that the law has on innovators. So for example, if you’re
engaged in encryption research, there are a variety
of ways in which you can run into legal risks, if
you disclose your research. And there are a lot of
concerns about that, among those students
and faculty at MIT. And so we may be involved
in some law reform. So I’ve been spending a lot
of time on that initiative, in the last year or so. And my day job,
my full time job, is teaching and scholarship. I teach in the area of
intellectual property. I teach a seminar on
IP and the internet. I teach trademark law. I teach IP law. I’m currently teaching an
undergraduate course dealing with research
methodology, and my unit is focused on patent
law and access to medicines, in the
developing world. From a research
perspective, my research has been primarily in the
areas of copyright, trademark, and right of publicity law. Though, I have dabbled a
little bit in the patent space. And I’ve got a bunch
of different threads, but I think for our purposes,
the most pertinent one is a series of articles
in trademark law and in copyright law, dealing
with the legal responsibility of online intermediaries, for
acts of copyright infringement and trademark infringement,
using their technologies. So the first
article I ever wrote involved Napster, the
file sharing service. And the appropriate
approach for evaluating the liability of
intermediaries, like Napster. More recently, I’ve focused on
the liability of intermediaries like eBay and Google,
for enabling consumers to access counterfeit goods. And you know, it’s tricky. It’s complicated and tricky,
and the law is still rapidly evolving. So my research and
teaching really explores those themes a lot. OK, terrific. Well, we’re glad to have
all three of you with us. Thanks so much, Stacey,
for that introduction. So we’ve got so many audience
questions pouring in, I think maybe, we’ll
just jump right to them. And they really overlap with
my own points of curiosity too. So we have a question from
Joe, in Cleveland, Ohio, who asks, “What is a
patent troll, and have any of the recent
changes in patent law, and or patent enforcement, had
any impact on patent trolls?” So if I could
interpolate a little bit, obviously, the term patent
troll is a little bit loaded and could mean these
non-practicing entities. Or it could mean
these larger firms such as, perhaps,
Intellectual Ventures, that make a business of trying to
protect other folks from patent lawsuits. Or initiating
lawsuits on their own. So people have different
fears and perceptions about what’s been going
on in the patent system. And to some extent, the
America Invents Act of 2011, was supposed to fix this. So who wants to jump in and
talk about Joe’s question, and whether the
recent changes or are in fact, helping to fix what’s
perceived as a patent troll problem? Well, I’ll start off. I think among the three of
us, I have the most patent experience. I’ve practiced patent
law for over 20 years. A patent troll is considered
to be a person, or entity, that abuses the patent system
by acquiring a patent, solely for the purpose of
enforcing it against persons who are unlikely to realize
that they have been practicing the patents. And therefore, being
able to squeeze, say, money or other
things from these people. These patent trolls have
given intellectual property, and patents especially,
a very bad name. I must say, that the
patent system has always been subject to
persons who have been trying to manipulate the system
for their own public gain. I pulled up an 1850 Scientific
American article last week, that was titled, “What’s
wrong with the patent system?” And it dealt with,
to some extent, people speculating on patents
and things of that nature. And greed was the
basic, underlying fault, that the editors
saw at that time. And that continues to be today. People try to pull money out
of the system, which they have, really, no entitlement to. Non-practicing
entities, such as MIT and then the
educational systems, legitimately obtain
patents, and enforce those, and license those patents, as
a means of creating revenue for the university. And for advancing technology. The fact that these patent
trolls abuse the system, should not undermine
the goodness of having these other
non-practicing entities. I’ll turn it over
to Dave, for now, because I think he’s done
the more recent research on the effect of the
change in the law. Yeah. Specifically, perhaps,
this change from a first to invent standard, to a
first to file standard. Right, David? That’s one of the
things you’ve been studying with the
Canadian example and the American example. Yeah. It is. So that specific
change is, I think, less targeted and probably
less relevant to patent trolls than another big issue. Which is individual
or small inventors, versus larger entities. That’s what made it take so
long for the America Invents Act to get passed, and
made it controversial. Was the concern
that larger entities have got tons of patent lawyers,
either on the payroll or firms that they work with
regularly, and therefore, are going to be quicker from
invention to the patent office. And that smaller entities,
or even individuals, might take a while to
get from their invention to the patent office. And therefore, by changing
from the first to invent standard, where that’s
what matters as far as who gets the patent, to the
first to file standard, you are more likely to
favor the larger entities. And it does seem like that’s
what happens in Canada, when I looked at that. But there are provisions
of the America Invents Act, the other major provision,
is about preemptive challenges to weak patents. And so that’s something
that people think might be having some
effect, or might start to have some
effect, in weeding out broad or weak patents. That’s part of the
reason why it’s possible for entities,
like patent trolls, to exploit the system, because
there are some patents granted that really
shouldn’t be granted. And you can take
advantage of that by suing or threatening to
sue, all over the place. And so the thought is, if we
can somehow weed those out– the patent office is never going
to be perfect at getting rid of all the bad patents. But if you can somehow
augment that a little bit, by allowing early
challenges by competitors, you can maybe mitigate
that a little bit. I don’t think there’s
very strong evidence, yet, that that’s having a big impact. But I will say, there has
been a lot of discussion about legislation in the
last two or three years, in Congress, post
America Invents Act, that would be more targeted
at abusive practices. And this includes things
like fee reversals. So if a patent
troll sued and lost, the defendant would get
their attorney fees paid for. The idea is this would
deter trolls from suing. And additional
procedural barriers, that just make it harder for
them to sue in the first place. Or they’d have to reach a
somewhat higher threshold, before they can
file litigations. The idea, again,
is to make things a little bit harder for
frivolous patent litigation to go forward. Now first, none of this has
actually gotten passed yet. And second, the tricky
part with all this is calibrating things
correctly, so that you are stopping the bad stuff. The stuff that’s
clearly frivolous, and there definitely
is some of that. If you’ve heard NPR stories,
or seen Last Week Tonight, on HBO, they’ve done a
great job of highlighting some of the really,
really egregious examples. But you don’t want to go too
far so that you scare off innovators and so that
you also potentially harm smaller entities that might need
to enforce their own rights. So that’s kind of where
I see things currently, both with the legislation,
and the challenge to getting legislation right. And I think we don’t really
know enough yet about how to calibrate things correctly. David, do you think eBay
v MercExchange has helped at all with reducing a little
bit of the cost associated with trolling? Or not? Yeah. So again, as a non
practitioner, I know practitioners have very
strong feelings, in some cases, about that. So I might let
Tom weigh in more. But my sense is, it’s
certainly affected things. But I don’t think it’s impacted
the situation with the trolls all that much. Wait. Could one of you jump
in and explain what that case is about? Yeah. So a few years ago– so the presumption
in patent cases has always been that if you
have a likelihood of winning your lawsuit, then you have
a right to an injunction. So you have a right to
prevent the infringement from continuing. Which means, that if you have
a lawsuit against a party that is selling a product that
incorporates your invention, you can basically require
them to stop sales and take their product off the shelf. That creates tremendous power,
right, by the patent holder. And it makes sense
to me that this isn’t so much a troll issue,
as more of a problem with abuse of patent, claimed
more generally. And perhaps claims based
on vulnerable technology related patents. But the idea is, if you have
a right to an injunction, it gives you a huge amount
of bargaining power. The Supreme Court,
a few years ago, issued a decision
in which it said, you don’t have an automatic
right to an injunction, in patent cases. Any more than you do in any
other kind of litigation. And courts are supposed to
consider a series of factors in deciding whether
to grant injunctions, or whether to award
damages instead. What this has done
is, let’s suppose that someone, a defendant,
is selling a product that does contain the
patented invention, but it’s a thousandth of
the value of the product. It gives the court
the ability to say, yes you were an infringer,
but your damages are going to be more limited. And the patent
holder doesn’t have the threat of being able to shut
down the sales of your product. Right. So, obviously, the legal
system, the court system, is helping to shape practices
and not just legislation. David did you want
to finish your point about that particular
case and its impact? Yeah. Just simply, my
sense is it hasn’t had a massive effect on trolls. But there’s still huge
demand and a number of different attempts
at legislation. So I think the sense, and again
I don’t have great data on it, and I like everything to be data
driven, so this is speculation. My sense is that,
if anything, it’s had a relatively minor
impact on trolling behavior. OK. I’m going to jump back to Stacy
with a question from Helen, in New York. And her question is, “What kinds
of legal issues do, or could, MIT student innovators see?” And, for myself, I might
tack on to that question. Going back to the
America Invents Act, when you’re talking to
students at BU or MIT who are trying to do
start ups and you’re trying to brief them
about legal risks, is the risk of an abuse of
patent infringement lawsuit one of the things that
they’re concerned about? And how do you counsel them? Particularly in a
time when the law itself seems to
still be evolving. Yeah. So there are a lot of questions
wrapped up in that question. So let me start with a
more general question, what kinds of legal
advice MIT students seek? There’s a whole range
of different issues that they come to the
clinic for advice about. The existing clinic
is really counseling students who are interested in
commercializing their ideas. So they might have a
product based on a new app that they developed. Let’s say two roommates
developed in their dorm room, and they’re interested
in commercializing it. They come to the
clinic and get advice about how to go
about moving forward. So conversations
take place about how to manage their relationship
with one another. What kind of stake
each of the partners will have in business
that goes forward? What kind of entity
the should form. Should they form a corporation? What kind of a corporation? A partnership? So they have preliminary
conversations about how they might go about
developing their business. And then they get legal
counsel in connection with moving forward. So our students will draft
articles of incorporation, founders agreements, bylaws,
non-disclosure agreements, things like that. The other cluster of issues,
or another cluster of issues, that our second clinic
is going to deal with is, helping to raise
awareness among MIT students about what the law
is in this space. Or what kinds of
laws exist relating to research and innovation. And so that they can
go in with their eyes open when they’re
engaged in research, or disclosure of research,
that might raise legal risks. And an example of this
is, a couple of years ago, there was a
group of students that in connection with a class,
was doing encryption research. For those of us
who live in Boston, we’re familiar with
the CharlieCard. Which is a card that allows
us to get on the MBTA, to ride the T, the train. These students looked
at the security that was used in the CharlieCard. And they discovered that
it was incredibly weak. That all of the data was not
stored in a central location, it was actually stored
on the card itself. They figured out how
to hack the card, and refill it, basically, so
you could ride the T for free. And they decided that they were
going to reveal their research, and make a presentation at
DEF CON hackers conference. And the MBTA got word
of this, and filed for a temporary restraining
order against these students. Our clinic, part of
the goal of our clinic, is to provide a
place that students, at the time they’re
doing the research, can come to and talk
about what they’re doing and make responsible
plans going forward. So maybe approach the MBTA
ahead of time and say, you’ve got this huge
security problem. And work collaboratively
with them, to ensure that they are
aware of the problem and don’t respond
reactively, the way they do. Basically, the idea is to try
to keep students out of trouble, as much as possible, by keeping
them informed about the law. Can I ask you a question? Whether, does that extend to
situations like Star Simpson, the MIT undergrad who wore the
sweater that had some embedded LED’s added, to Logan
Airport and then got the SWAT team called on her and
had all sorts of legal trouble ensued? And I just read an article
by her, not too long ago, where she was not very
favorable about how the MIT administration helped,
well, or didn’t help her. Yeah. In that situation. And it seemed like that,
and then Aaron Swartz from a few years ago. Also I think a lot
of alumni think the administration has been
dealing this in exactly the non MIT way. Is that something,
or is that too far– That’s exactly right. So these are the cases– there was a big
movement on campus at MIT, among both
faculty and students, there was outcry after
the Star Simpson case, after the Aaron
Swartz case, that we need to have someone who’s
going to be available to give legal advice to students. This is brand new,
so it’s not exactly clear to how this clinic
will represent students, in what context, it
will represent students. And so for example, if
criminal charges are filed against students,
that falls outside the scope of the clinic. But the hope is, that
by providing both advice and representation,
of these students, we can avoid that happening
in many, many cases. So yes, this is a
response to the outcry after those incidents. The administration over
at MIT reached out to us. They’re really looking
to solve this problem, and I think they’ve
been very committed. My experience, in
working with them, is that they really want to make
sure that their students are getting good counsel. Well, so OK there are
all sorts of reasons why that, sort of the hacker
ethic, at a place like MIT is almost by its
very nature, going to come in constant friction
with the establishment. And including the
legal establishment. So it’s probably good
for the Institute to be thinking about
how to deal with that. Those episodes of friction. I want to bring the conversation
back to intellectual property law, though. We’ve got a great
question, really a proposition, from a viewer
named Heidi, in Israel. Who asks, “Why are trolls bad? They provide a
market for patents, which makes it easier
for small inventors to sell their patents. Beforehand, it was hard to
find a buyer for your patent and it was hard to go to
court to enforce your patent, since that’s so expensive. Trolls solve this.” Who wants to respond
to that proposition? I’ll take that. There’s a right way– [INTERPOSING VOICES] Sorry Tom. [INTERPOSING VOICES] Tom. [INTERPOSING VOICES] Then I want to get in on it. OK. Go ahead Tom. OK. Let’s see, am I on? Yes. OK. As I mentioned before, the fact
that the person, or entity, that buys the patent is
a nonpracticing entity isn’t determinative of
whether they’re good or bad. What makes a troll bad, is that
they exploit the system just to drain money from the pockets
of companies, corporations, individuals, who are basically
oblivious to the fact that they’re using technology. Now you’ve got to realize that
patent infringement, is what we call a strict liability tort. In other words, you
do not have to have any understanding,
or any knowledge that you are infringing,
to be liable. Now, if you do know,
and you do it willfully, there’s additional
damages that will be awardable to the patent
owner, upon the evaluation by the court or jury. But what makes
patent trolls bad, is that they have,
basically, set up as part of their business
plan to acquire patents which, arguably or colorably
let’s say, affect or some other
company’s products, and they will go
after those companies. First with a cease and
desist letter, saying you are infringing our patents, and
we will offer you a license. Please pay us X
number of dollars. Now you’ve got to
consider, realize, that patent litigation outside
of antitrust litigation is the most expensive type
of litigation there is. And so generally speaking,
for even a small value patent, something
that’s between, what has a value to $1
and $25 million dollars, you are, as a defendant,
going to spend close to $3 to $4
million on the average, for protecting your position. Saying that you’re
not infringing. The patent troll
knows this, and says, OK I will give you a license
for $300,000 and I’ll go away. Patent trolls often go after
companies that they think will give them that payment,
rather than give them a fight back. And after they get a
couple of these lined up and then they can send their
next letters out, saying look, you are infringing. Take a license for X number
of dollars and I’ll go away. By the way, this big corporation
and this big corporation have already paid this to me. Thus, it adds a
gravitas to the letter and so this creates a
chain of compliant persons who are basically
paying what we used to call, strike suit money
or nuisance suit money, to these trolls. So as I said, trolls are
bad because they set out to pull the money
out of the system. OK David, why don’t
you jump in, but if you could answer the market
question in the process, that would be awesome. I mean. Yes. Yes. Absolutely. Heidi, (Hebrew phrase)
that’s a great question. And I think it’s really
central to the patent debate. I think Tom laid out,
kind of the legality, and clearly that’s an issue. But I think I look at it
from an economic perspective. And you pointed out,
absolutely correctly, that we have middlemen in
every industry, basically. And there’s a good
argument, that you would call trolls
or NPEs, or PAEs, are just middlemen
in the patent space. And exactly what you’re
saying, and in some cases are, they’re absolutely
doing what you’re suggesting, which is helping
small inventors either enforce their rights or maybe
to produce the product. The troll doesn’t
do it themselves, but maybe they facilitate
transfer of the IP to another company that
can produce the product. And let the small
inventor or company, do the kind of, basic R&D.
I’m under no illusions– [INAUDIBLE] What’s that? If I might jump in here? [INAUDIBLE] Well, give me one
more second Tom, and then I’ll let you jump in. So I’m under no illusions that
this is what everyone is doing, or even maybe a majority,
but it’s definitely some part of it. And what I think is often
missing from the discussion here, is exactly that, there
can be a useful middleman function of trolls
or NPEs or PAEs, and they get used in different
ways, by different people. And so Tom, if you’re
talking about something else, you just let me know. But I think that’s
exactly right. And I think the
question is, when are these entities
acting as middlemen, and productive middlemen? And when are they
helping facilitate the transfer of
technology, or helping induce smaller individuals
or entities, to invent? And when are they acting
like hold up, what I call, hold up artists. Exactly like Tom was
describing, where they’re sending, basically,
threatening letters based on an IP that doesn’t
really have much merit. And that’s what
I’m trying to do. So my focus of my
research right now, is trying to answer that
question empirically. I’m trying to get
some evidence, so we don’t have to have these fora
again and again for the next 10 years. So we actually
have some data that tells us a little bit about it. And I’ll tell you a little
bit, this is still preliminary, and we haven’t even written
the working paper yet. But one thing we’re trying
to look at is, what happens– so are small entities more
likely to sell to trolls? We find yes. They are. It’s more likely a small entity
will sell, than a larger one. They’re also more
likely to sell IP that’s more likely to be litigated. So this goes to the
story that says, maybe trolls are kind of
standing up for the little guy. OK. Let me let me, David,
let me stop you there. Because we’re
running out of time. Tom, did you want to briefly
jump in with a response? Yes. My response is this, I think
you and the general media use the word troll, too broadly,
to mean any nonpracticing entity. Yes, the troll, in
my opinion, is just someone who comes in to squeeze
money, ill gotten gains, out of the system. OK. The NST, and also law
firms and other entities, which are there to
legitimately help small inventors, and
others, to realize the value of their patents,
definitely should not be discriminated against. Yes. OK. All right. Well, so we’ve got
about five minutes left, and I’d like to wrap up with a
terrific question that came in from Brendon, in Boston. And maybe each of you
could respond to this. So given the challenges facing
the existing patent system, I’m going to broaden
that to say the existing intellectual property system. “If each of the panelists
was given the chance to redesign an
aspect of the system, what aspect would you
choose and what would you do to reform it?” Hard question. That’s like a big exam question. So I’m going to put
you on the spot there. Who wants to try to answer
that question first? It’s hard to answer. I’ll jump in. It’s hard to answer with respect
to the intellectual property system. , Generally I’m not sure
what the step that I would take would be, what the biggest
problem in the IP system is. I think each of us is focused
on our own area of practice or a scholarship. And, I think, there are certain
concerns that each of us is grappling with. So the concerns that I’m
grappling with are important. I’m not going to say that they
are the most important issue in intellectual property law. And for me, I have two,
from my own research. One of them is, that I think,
we need greater certainty. We’ve got somewhat
greater certainty, but I think we
could use a bit more on the relative
responsibilities of IP owners and intermediaries
for enforcement of intellectual property
rights on the internet. I proposed some
tools that courts can use, to have greater certainty. And you know that’s
a lot of the work that I’ve been involved in. Another piece of
it, for me, would be in the trademarks space, and
the right of publicity space, that we have a greater
appreciation of the value that the public gets from
a lot of unauthorized uses of trademarks and
personal images. Other people need to speak, so
I could go on and on about that, but you know. No, that sounds fascinating. I wish we had more time
to go into that, Stacey, but I– yes, we do
need to wrap up. So, Tom, what would your
one big fix for the patent system, or the IP system be? Actually, I don’t
have a one big fix. What happens right
now is actually the best that humans can do. We have system that,
over the years, evolves. There’s always going to
be, at the leading edge, there’s going to be
these individuals who are very motivated by
money and greed, who find the loopholes that
are existing in the system, and exploit those before
anyone else can fix them. And so, eventually,
their actions cause the rest of the system
to see what they’ve done, and cause a fix to occur. So I think we just
have to continue on. Patents are given
up by each country, the world is, in
the last few years, trying to harmonize
the patent systems. So it makes it much easier for
the inventors around the world to actually get rewards
for their creativity. But this is always a
progressive system. And we just have to look to see
where the areas of improvement open up, as time goes on. That’s all. OK. Thanks, Tom. David, you get the last word. OK. Quickly, two things. One make it hard to get software
and business method patents. These are part of
the huge increase in patents in recent years. A lot of them are crap. We should make it
harder to get them. Two, shorten copyright. Copyright is insane. You can get a copyright
on something for over one hundred years now. I find it very hard to believe
that the discounted value of revenues that
you, or your estate, might obtain one
hundred years from now is influencing anyone to
create more artistic works. So cut down copyright. Copyright started at fourteen
years in this country.

Danny Hutson

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