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Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.





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Intellectual Property -- License to Steal?

Joe Nocera wrote a fascinating story about a nasty patent suit between a patent-trolling company, whose board is chaired by none other than Paul Allen, and audible.com. The story begins:

Nocera, Joe. 2006. "Tired of Trolls, a Feisty Chief Fights Back." New York Times (16 September). "Patent disputes have become part of the dark underbelly of American business. So-called patent trolls acquire patents, often from bankrupt companies -- and often overly broad patents that should never have been issued by the United States Patent and Trademark Office in the first place. Instead of using them to build a commercial product, they extract licensing fees from companies that are making and selling real products. As The New Jersey Law Journal put it not long ago, "They exist solely to exact a tax"." "The deck is stacked against target companies, even when their product is not infringing. Patent litigation is expensive, and the judicial system tends to be sympathetic to the patent holder. So companies usually come to the obvious conclusion: it makes more sense to pay than to fight. For its part, the patent troll often prices the licensing fee below the cost of litigation, to encourage such behavior." Abuible refuses to settle, spends a million dollars rather than pay the demanded $300,000, only to find out the troll company does not even have legitimate ownership of the patent. "After a year of legal wrangling, Digeo dropped its price. A clearly frustrated Mr. Blaisdell wrote an astonishing e-mail message in May 2006 to Audible's internal lawyers, saying he was "perplexed as to why Audible has not taken Digeo up on its offer to settle for $300K." After all, he pointed out, that was far less than the "high legal fees" Audible was paying. He added, "Surely you understand that the prospect of convincing a Jury that Audible doesn't infringe or that the Patent is invalid is an expensive one." Digeo may or may not be a patent troll, but rarely has the economics of patent trolling been so baldly stated." "As it turns out, Digeo did not have the complete ownership of the patent that it thought it had. Documents that had been turned over to Digeo when it bought the patent showed that Edward Chang, one of the four co-inventors, had died, and that another -- his brother -- had assigned the rights to the patent to the company that later sold the `823 to Digeo." "Edward Chang, however, was very much alive, and his brother had never assigned the rights to anyone. The documents had been forged -- though it's not yet known by whom. The forgery was discovered by Mr. Kelber, the Audible lawyer. Audible then went to Mr. Chang and got him to sell it a license for $70,000. Last month, when this new evidence was presented, a judge ruled that Digeo was entitled to no monetary damages from Audible."

Financial Patents: Is the big bang happening

Creswell, Julie. 2006. "A Wall Street Rush to Patent Profit-Making Methods." New York Times (11 August).

An intellectual property arms race is escalating on Wall Street, where financial services firms like Goldman Sachs and Citigroup are building up stockpiles of patents on processes like software-based pricing, trading and risk analysis systems and products like credit cards, exchange-traded funds and exotic derivatives.

While there have been no big clashes yet, the question is, Which firm will be the first to try to enforce its growing portfolio of patents?

Patent activity among financial services firms began to soar in the late 1990's, prompted by the boom in new technology and by the fact that banks were spending enormous sums to upgrade their in-house systems. A federal court decision in 1998 that software and business methods could be patented also fed the rush to seek patents.

The result was a virtual stampede among top financial services firms to the United States Patent and Trademark Office. In 1997, there were 927 patent applications for various methods of processing financial and management data. Last year, there were 6,226.

Perennially understaffed and now overwhelmed by the sheer volume and complexity of these "dreamed up by a rocket engineer" financial products and systems, the patent office has struggled to keep up with the flood of applications. These days, banks and other financial giants are being granted patents they applied for four or even five years ago. Last year, more than 1,000 patents for processing financial and management data were approved, up from 200 in 1997.

Goldman, viewed by many as a patent leader on Wall Street, has hundreds of patent applications in the pipeline and has received patent rights on a couple of dozen products and systems, according to its chief patent officer, John Squires. He joined Goldman in the new position in 2000 after being a patent lawyer with Allied Signal.

"I think there will be increased filings as the convergence of banking and technology is irreversible," he said. "As people spend more and more building systems and deploying technology, they're going to want to make sure they have the rights available to them."

For now, all the big firms seem to be playing nicely with one another. Many lawyers involved in patenting systems and products on Wall Street label the patents as defensive in nature. They say Wall Street banks are trying to patent products or software systems in an effort to protect themselves from claims or litigation brought by individuals or small companies whose primary business is holding patents -- those known to their detractors as patent trolls.

But some warn it is merely a matter of time before the patent activity turns from defensive to offensive. Wall Street firms will eventually look for ways to license the technologies or products they have patented, hoping to earn a high-margin revenue stream, or they will begin to litigate against each other, lawyers say. "Right now, people are figuring out they need some playing cards so that if someone comes to us and says 'You're infringing,' well, we have some patents and we can do a cross-licensing deal and everyone goes away," says Raymond Millien, a former patent lawyer for American Express who is now the general counsel with Ocean Tomo, a merchant bank specializing in intellectual property. "But there are going to be some companies on the Street who are going to start licensing their products and enforcing the patents to get a revenue stream from them."

No one is ruling out the possibility of a patent war between the financial titans some time down the road. It has happened before. In 1982, Merrill Lynch sued the rival brokerage firm Paine Webber, accusing it of infringing on a patent Merrill received on its cash management accounts. Eventually, the two reached a settlement. "Right now, because all of the Wall Street banks are showing record profits, there's not much incentive to sue within the club," Mr. Millien said. "But three years or so down the road, it's hard to say."


   

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