Thinking Tech

Time to criminalize patent violations?

Time to criminalize patent violations?

Posting in Technology

Download a song and go to jail. If your invention is stolen the thief writes a check.

the If you illegally distribute this bit of copy then, technically, you can be charged with a felony for violating the No Electronic Theft Act of 1997.

If you steal my patent, on the other hand, as in the 2008 Greg Kinnear film Flash of Genius (right, from Amazon.com) , that's not going to happen. It's a civil matter.

Would we have more invention if that changed? A proposed EU directive on intellectual property calls for criminal penalties on patents. UK inventor Trevor Baylis (known best for his folding bicycle) told the BBC recently it's about time.

Baylis argues this is the only way to level the playing field between individual inventors like Bob Kearns, portrayed by Greg Kinnear in the film, and companies like Ford Motor, the defendant in the film.

That's because in a civil suit the victim pays to investigate and prosecute the action, while in a criminal court this is the state's job.

There are problems with that. Many patents are filed by corporations, and enforced against new businesses based on expansive claims that may be disputed. Witness all the hooha about software and business method patents -- you want to go to jail because someone claims to have patented the auction?

Then there is the unequal application of the current law. Every patent attorney knows that the place to file if you want to win is the U.S. District Court for the Eastern District of Texas, in Tyler. Want some Texas ranger rousting you into jail because a patent troll claims you took their software?

Patent law reform is an issue in every Congress. We discussed the current proposal for that here, last month.

Google's head of patent strategy, Michelle Lee, blogged recently that she wants civil patent awards lowered, not raised, as part of a broader reform. The 2007 bill that passed the House would have weakened the case for inventors, not strengthened it.

The Coalition for Patent Fairness, representing Google and other tech companies, wants to make it harder for inventors to win in court, especially on "willful infringement" claims that now mean triple damages.

Imagine if criminal statutes were in play here. Would you want to see Eric Schmidt and Steve Ballmer hauled off to chokey because some coder in Weehauken claimed he invented Web cookies?

I wouldn't.

But the fact is there is a tilted playing field right now. If you violate the rights of a big corporation by transferring a song or movie they own without payment, they can have you hauled away. If they steal your invention, all the onus for prosecution is on you and the worst that can happen is they write a check.

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Dana Blankenhorn

Contributing Editor

Contributing Editor Dana Blankenhorn has written for the Chicago Tribune, Advertising Age's "NetMarketing" supplement and founded the Interactive Age Daily for CMP Media. He holds degrees from Rice and Northwestern universities. He is based in Atlanta. Follow him on Twitter. Disclosure