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Time to criminalize patent violations?

By Dana Blankenhorn | Sep 2, 2009 |

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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  •  
    1

    rjriley

    09/02/09 | Report as spam

    RE: Time to criminalize patent violations?

    Big companies love to delay justice, the goal being to bankrupt inventors. The reason inventors and small and large companies alike go to Texas is that the court does not allow the kinds of delaying tactics and abuse of the process of law which is large companies stock and trade.

    The inventor community has repeatedly torpedoed Patent Deform for nearly twenty years. We have every intention of continuing to do so.

    Consider how you would feel if you produced an invention, perhaps spending a decade or more doing so and sinking your life savings into the effort only to have a member of the Coalition for Patent Fairness (aka. the Piracy Coalition take your invention, put you through litigation hell, and top it all off with a massive smear campaign claiming that you were a bad person.

    If you cannot relate to this then consider that inventors and the small companies that are founded by either the inventor or those who work with the inventor are responsible for nearly all new job creation.

    Ronald J. Riley,


    I am speaking only on my own behalf.
    Affiliations:
    President - www.PIAUSA.org - RJR act PIAUSA.org

    Executive Director - www.InventorEd.org - RJR at InvEd.org
    Senior Fellow - www.PatentPolicy.org
    President - Alliance for American Innovation
    Caretaker of Intellectual Property Creators on behalf of deceased founder Paul Heckel
    Washington, DC
    Direct (810) 597-0194 / (202) 318-1595 - 9 am to 8 pm EST.

  •  
    2

    DanaBlankenhorn

    09/03/09 | Report as spam

    So as to the issue at hand?

    You didn't say whether you want criminal penalties, and criminal law, applied to patent disputes. Given everything else you said, I'd love tohear it.

  •  
    3

    Dennis Kearns

    09/03/09 | Report as spam

    RE: Time to criminalize patent violations?

    Justice delayed is the standard of the automotive industry.

    Justice denied is what the Federal Courts offer.

    When my Dad mentioned the word Justice in his trial Judge Cohn became enraged, stopped him and admonished him that the court system had NOTHING to do with JUSTICE!

    I can imagine how many millions of dollars my family would have saved had there been a possibility of criminal prosecution.

    I can imagine evidence being presented to the jury, rather than concealed from the jury as it was.

    I can imagine it taking a few years rather than decades.

    I can imagine infringers fearing court rather than welcoming it.

    I can imagine patents actually being respected.

    It sounds like a good idea to me.


    See what Alan Alda says?

    http://www.filmsnmovies.com/video/5368/flash_of_genius_alan_alda/


    Dennis Kearns

    http://Dennis-Kearns.com


  •  
    4

    pjirwin@...

    09/03/09 | Report as spam

    RE: Time to criminalize patent violations?

    I feel the pain. I invented a product over 20 years ago and was selling the product on the open market. My big mistake, maybe, was selling to the US Government. After a couple good orders and a change in Pres (1992) I found I had competition in a "sole provider" situation (yes, my prices were the same as in the private sector - no gouging). It seems that Uncle had taken my specifications; my prototype; and sent them to a friend of Bill's in, where else, Illinois. The order I had bid on (yes, I still had to complete all the bid papers) was held up for a year and a half, while the interloper was given a chance to "catch up". Now there is a fine example of Patent Infringement! Oh yeah, I did not win the bid - it was obvious to me that the interloper knew what I had bid in the past.

  •  
    5

    dannymagoo@...

    09/03/09 | Report as spam

    RE: Time to criminalize patent violations?

    The time has come in America for term limits on all elected officials including the judges with lifetime apponitments. This is the only way to ensure we are not SUPPOSEDLY represented by people who are BOUGHT AND CONTROLLED by the corporate MONEY... As you can see the powers that be are only to happy to bow to the money instead of representing the little guy.

  •  
    6

    rdupuy11

    09/03/09 | Report as spam

    RE: Time to criminalize patent violations?

    Well while I guess being continuosly in favor of placing more Americans in captivation is a trendy thing...the answer really lies not in criminilazing patent violations but decriminalizing TOS violations.

    The cable company doesn't really need to have felony enforcement powers, if you steal some cable.

    A fat $1000 fine will put the stoppers on it, and not being grossly out of line with the crime, and maliciously cruel.

    Americans already jail more of their own people, per capita, than any other country on earth...so think about that fact, as you weigh how to treat other people.

  •  
    7

    renzo@...

    09/03/09 | Report as spam

    RE: Time to criminalize patent violations?

    We need to protect inventors but we need to stop patent trolls -- I would love to hear suggestions on that.

    I once was forced by the CEO of a company I worked for to sign an NDA with Microsoft in which they stated if they saw our programming code and it later showed up in their products it was theirs -- that is theft -- we needed to test in their labs and signed the deal even though it could have led to a significant loss of the asset of the company if the source code was stolen.

    It is time to hold big companies accountable but at the same time limit these trolls from stifling innovation -- also I would like to see business methods removed from patent protection as they also stifle innovation and large companies come out with these overly broad ones with no real new invention -- a good idea is just that till you do something with it.

  •  
    8

    smithkl42

    09/03/09 | Report as spam

    RE: Time to criminalize patent violations?

    You've got it exactly wrong. As a serial entrepeneur, I'm firmly convinced that our current patent laws, especially when it comes to software patents, discourage innovation rather than encourage it. We allow patents for so many stupid things right now that it's virtually impossible to start a new technology company without stepping on somebody else's supposed intellectual property. This represents a huge risk for entrepeneurs, investors, and other folks who want to support innovation, because it's simply not possible to know up-front which patents you're supposedly stepping on, and which of those patents are going to be enforced. This dramatically stifles innovation. If all existing software patents were to be enforced tomorrow, the entire US economy would grind to a bloody halt. We desperately, desperately need to make software patents more difficult to acquire, more difficult to enforce, and less profitable when infringements occur.

  •  
    9

    dgurney

    09/03/09 | Report as spam

    Yeah, that's brilliant.

    Let's criminalize patent violations before preventing illegal patents themselves. Great idea.

    No way can we even start to think about stricter patent-violation penalties when the USPTO fails again and again to do its job. Its job is to REJECT obvious and invalid patents. Look at this "one-click" crap and the patents on software and "business methods". They awarded a patent to a kid for a "method of swinging".

    Spend your energy fighting to fix the USPTO, not criminalize the violation of patents that should never have been issued.

  •  
    10

    worldnick

    09/03/09 | Report as spam

    Want More Inventions? Get RID of PATENTS.

    Allow anyone to build anything anywhere and sell it. The little man is only stifled by the fact that he cannot build anything he likes and compete. At it's core the patent system was invented to keep wealthy people wealthy. It does nothing for innovation because innovation is not motivated by greed it is motivated by curiosity. Inventors don't care about who is making money with their invention. They just want to be able to make it freely. If you invent something at the same time some big business does then you should be able to market it and sell it as well. It is negative reinforcement to tell inventors that it has already been created so they can't make it. Patents only KEEP people from doing things. They don't encourage anything. There is already a system in place by nature for the success of inventors. It's called being first. If you are truly first then you have a natural advantage. As far as I can tell patents are some sort of weapon probably used mainly by unintelligent people against intelligent people. Invention should be celebrated not mediated and when you tell even one person that cannot produce something and sell it then you are stifling SOMETHING. Even the act of selling should be encouraged. Even if someone elsess idea inspires you to sell something then you should be encouraged to move. I have ideas and I wish I lived in a world where I could get on the phone and get them built, but I don't know about the law and apparently invention in America is 90% legal know how. I feel sorry for inventors here.

  •  
    11

    robgillis@...

    09/04/09 | Report as spam

    RE: Time to criminalize patent violations?

    A well researched and well written book on the subject of patents is available for free online. Take a look at Against Intellectual Monopoly:
    http://www.dklevine.com/general/intellectual/againstnew.htm

    A quick introduction from the website:
    "It is common to argue that intellectual property in the form of copyright and patent is necessary for the innovation and creation of ideas and inventions such as machines, drugs, computer software, books, music, literature and movies. In fact intellectual property is not like ordinary property at all, but constitutes a government grant of a costly and dangerous private monopoly over ideas. We show through theory and example that intellectual monopoly is not neccesary for innovation and as a practical matter is damaging to growth, prosperity and liberty."

  •  
    12

    Hobyx

    09/07/09 | Report as spam

    neither should be criminalized

    Increasing punishment severity only increases monopoly dominance.. particularly since
    you can't imprison a corporation.

    The whole point of patents and copyrights are to allow small innovators to compete on a
    more level playing field with larger, established producers of such products.

    Criminalizing and endlessly extending the period of protection ends up completely
    stifling new innovation by way of cutting off all derivative work from new innovators..
    Invention and creativity never happens in a vacuum, everything is in some way based
    on a thousand other things - building on the old with new concepts.

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