

The America Invents Act's Patent Reform Might Strengthen Patent Trolls - grellas
http://www.litigationandtrial.com/2011/07/articles/attorney/patent-infringement/the-america-invents-act-and-patent-trolls/

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tzs
His argument makes no sense. The argument is that the Act might make it more
expensive to get a patent (because it makes it easier for third parties to
make the patent go through extra review). Small entities might not be able to
afford that, so might not get as many patents, whereas large or well funded
entities will be able to afford to go through the process. He gives
Intellectual Ventures as an example of a large entity that will be largely
unaffected by this.

First, he's wrong that IV will be unaffected. True, they can afford the cost
of extra review, and so if all the extra review did was raise costs then they
would be unaffected as far as their ability to get patents goes. However,
that's not all the extra review does. The extra review will also cause some
patents to be rejected that otherwise would have been issued. That will affect
everyone who tries to get patents that are not novel or non-obvious to one
skilled in the art, regardless of their size and ability to pay for the more
costly procedures.

Second, even if the Act merely weakens small trolls, and leaves larger trolls
untouched, that still has overall weakened trolls. No patent troll is
strengthened by the Act.

Third, most troll patents come from small entities. The large trolls buy most
of their patents from small entities or individual inventors. IV does do a
significant amount of original research and gets patents on it, but those only
comprise a few percent of their portfolio.

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MaxwellKennerly
Bear in mind that Congress hasn't done anything to change the types of things
that can be patented; under the Act, the patent for thermal refreshing of
bread would still be appropriate. Software patents are still all the same.

The critical part there is how, as you noted, "most troll patents come from
small entities." Raising the cost and time of obtaining a patent will have
only a modest effect in stopping people from attempting to file for these weak
patents, but will have a major effect in compelling them to assign the patents
to larger, better-capitalized entities with greater capabilities in pushing
the patents through the process, like IV.

It is counterintuitive. I wouldn't have thought this would be the result had I
not seen the same thing happen in securities litigation: Congress attacked the
nuisance suits and ended up making the biggest securities law firms far
stronger and more profitable. Counterintuitive, but demonstrated empirically
in another field.

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dexen
There is a recent article by PIA: <http://truereform.piausa.org/> where they
claim mostly the same.

