Case In Point
At the 2002 FTCU.S. Federal Trade Commission. An independent regulatory agency charged with consumer protection and competition policy, which conducted several influential studies on how patents work in practice. Authored several key studies: 2003’s To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy [PDF] and 2011’s The Evolving IP Marketplace: Aligning Patent Notice and Remedies with Competition [PDF]./DOJ hearings, the patent counsel for Texas Instruments, one of the world’s most sophisticated patent licensors, described the challenge of determining what was in its own portfolio as a “mind-boggling, budget-busting exercise.” In 2002, the company had 8,000 U.S. patents. As of 2011, the size of its patent portfolio had nearly doubled.
If one of the world’s most sophisticated patent operations cannot reasonably make sense of its own patent portfolio, how can any company — especially a small company — make sense of the patents owned by everyone else. Just as “most of the smart people in the room work for someone else,” most of the patents belong to someone else.
These problems have grown worse over the years. As the National Science Foundation (NSF) charts below show, information and communications technology (ICTInformation and Communications Technology. Similar to "IT" (information technology) but explicitly includes telecommunications technologies as well as computing.) patents doubled between 1995 and 2008, whereas the number of patents in other advanced technologies remained much the same, or even declined:
The vast number of patents and applications create a “thicket” that puts producing companies in a quandary. Searching patents is prohibitively costly and inconclusive, yet the risks of inadvertent infringement are substantial, including injunction, disproportionate damages or an order barring importation from the International Trade Commission. On the other hand, even if a problem patent is identified, the odds are very good, if it is asserted, that prior artPrior art is the knowledge in the field of a patent that was publicly available before the patent was filed. can be found that limits the validity or scope of patent. No large company wants to develop a reputation as an easy target — and so it will spend generously on legal defense to ensure that this does not happen.
ICTInformation and Communications Technology. Similar to "IT" (information technology) but explicitly includes telecommunications technologies as well as computing. and software producers have developed ways of dealing with the proliferation of patents. They cross-license their portfolios with each other. Or they enter into non-assertion agreements, in which they agree not to sue each other. More informally, they restrain themselves for fear of mutually assured destruction. However, these understandings are ineffective against trolls who, unlike producing companies, have nothing to lose and everything to gain from patent litigation. Moreover, the implicit truce due to mutually assured destruction appears to have broken down.