Monday Patent Notes: "Patent Elves," Naked Cowboys, and a big Microsoft verdict

• Did you know patent litigation actually increases competition? (Also, night is day, black is white, and 2+2=5, all to be addressed in future posts.) Who thinks more lawsuits are good for the economy? File that under "not surprising": Two consultants from litigation-support company LECG, joined by a partner from Howrey LLP. (Wait, isn't that the "no trolls" law firm? Hmm...) Read their new paper, which seems to suggest that so-called "patent trolls" should be renamed "patent elves." Reported Friday by IPlaw360 (subscribers only). 


• File this under "even less surprising." Not reported by IPlaw360 is the company that paid for the discovery of this new math: Qualcomm, a big-time patent licensor. (The authors did the right thing by disclosing this fact in a front-page footnote.)

• Today, an April jury verdict for Alcatel-Lucent and against Microsoft was upped from $358 million to $512 million, the AP reports. That makes this the biggest patent award of 2008 so far, even bigger than both massive verdicts against Boston Scientific. Microsoft will appeal.

• The Naked Cowboy, a New Yorker who claims M&M/Mars stole his outfit idea for an advertisement, still has hope, reports the WSJ law blog. A judge threw out his privacy claim but his trademark infringement claim lives on...

 

Comments

[Fred]

Qualcomm paid money for its attorneys to write a paper renaming "patent trolls" as "patent elves?" Precious.

[Joe Mullin]

The authors are one attorney at Howrey and two economists at LECG; I have no idea what their relationship, if any, is with Qualcomm beyond this paper. The footnote says simply, "Financial support from Qualcomm is gratefully
acknowledged."

[Joe Mullin]

Also, to be clear, the only reference to the term "elves" is in the paper's title:

"Elves or Trolls? The Role of Non-Practicing Patent Owners in the Innovation Economy"

[Damien]

Joe,
Did you read the paper? Your depiction of it does not make any sense. We never said that patent litigation increases competition, etc etc The point of the paper is that non-practising entities can play a useful role in the economy. Next time you comment on a paper, please read it before.
Damien

[Joe Mullin]

Damien,

Thanks for your comment. I did read the paper before posting, but thanks for checking. I mentioned the title because I liked the title, not because I didn't read past the title.

You accurately describe the paper's main point above. But I think my comments are pretty clear.

The _controversy_ around NPE's that you weighed in on is about litigation. That is the essence of it. If you define NPE's broadly enough saying they "have a useful role in the economy" is about as meaningful and relevant as saying "universities have a useful role in the economy" or "hourly workers have a useful role in the economy." It's a non-argument; it's just a statement that nobody could possibly disagree with.

But your paper weighs in on the arguments about so-called "patent trolls" from the first line.

So you really are writing about a controversy over litigation—sorry, there's just no way around that one. You framed your argument that way. You waded into that water.

You did not write "lawsuits drive competition." You did say NPE behavior drives competition, and then neglected to mention the most relevant and controversial behavior; I filled in that blank. I don't think that's unfair.

The fact that the paper avoids discussing the true controversy in anything but the most oblique terms is not material to my post; I am not obligated to describe the debate using the terms you set out.

[Joe Mullin]

Now that I think on it, I'll also just note here that lawsuits and courts have many, many good and necessary uses that aren't always "pro-competitive." I think saying vigorous patent enforcement actually increases competition per se is a real stretch, but that doesn't mean I'm calling it "bad."