NASA, Government Shutdowns And Patent Trolls

Oct. 1, 2013
The US Government is shut down because of a minority. The same thing can happen with patents. Is it right? What about patents and standards?

Ok. First the NASA plug. I have a trip coming up that will hopefully be to NASA. It is far enough away in time that the current shutdown will not affect it but one never knows about Congress. At this point even their website is down (Fig. 1).

Figure 1. This is what I saw when viewing the site (or almost any other U.S. government site).

This mess has everything to do with politics and it is affecting everyone within the U.S. and many outside whether they like it or know about it. Everything from getting a passport to visiting a national park now needs to be put off, indefinitely.

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If you haven't read any of the thousands of news items on the web or in every daily newspaper in the country then you might not have heard that the House of Representatives and the Senate are playing ping pong with a continuing resolution that would keep the government going but only for a little longer. They haven't been talking about the actual budget yet.

There will not be any work done at the patent office either which is what I really want to talk about. That along with a discussion of standards that are based on patented ideas. There are lots of standards like this and many organizations set up to handle them that work to varying levels. For example, MPEG LA licenses MPEG codec technology.

The idea of these organizations is the patents in the pool are available for fair, reasonable, and non-discriminatory terms (FRAND) to parties that would then make products based on the patents. Normally there are royalty rates that are fixed in some fashion, usually a percentage. These organizations were set up because often a standard required multiple patents and negotiating with multiple patent holders is a challenge at best.

These patents are often called standard-essential patents (see Standard-Essential Patents: Innovation’s Boon Or Bane?). These SEPs, as they are known, essentially limit the use of a standard to those that own or license the technology. A problem occurs when a SEP is not available under FRAND because the patent holder did not disclose the patent when a standard was being created. This has occurred numerous times with typically leading to long and costly court battles to resolve the issues.

Some organizations, like VITA, have an ex ante patent standards policy. VITA is known for the VME and VPX standards. As part of the process, all working group members must disclose all patents and patent applications and provide FRAND terms. This may not lead to terms that some would consider adequate to build products from but usually they are. At least all parties know what the costs are going to be.

It is the up front disclosure that makes a big difference and one reason the U.S. Department of Justice (DOJ) finds this type or policy procompetive rather than monopolistic. Otherwise, this type of collusion could run up against antitrust laws.

Unfortunately, patents in general have the same kind of problem because not knowing about a patent or a patent application does not prevent a patent holder from suing after a product is brought to market. FRAND terms would eat into profits from a product but hopefully they would not eliminate the profits completely.

On the other hand, patent holders often use their patents in an offensive manner to maintain a monopoly as with the ongoing Apple/Samsung disagreement (see The Apple/Samsung Judgment And Our Broken Patent System). This is likely to go one for quite awhile with many other patent holders becoming involved in various ways because of the nature electronics and computers these days. Our mobile devices contain hundreds of components and technologies that are covered by one or more patents. Any one could hold up shipment of a device or force terms that would bankrupt a company.

This is where patent trolls come in. Patent trolls are companies that simply buy and sue or license technology. They never use the patents to create a product or service. Unfortunately patent trolls can extort money simply because they have deeper pockets than companies actually trying to build products even if the patents are eventually voided.

Hopefully our government will be back up and running soon. I am not as confident about the patent system though. It works well for some but I suspect that most designers and programmers are not even thinking about patents until a patent troll comes knocking.

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