Patent Enforcement is not Terrorism

Pirates are traditionally thought of as mean guys with guns and boats who rape, rob, and plunder.  Terrorists use bombs and other forms of violence and intimidation to achieve their political objectives.  However, of late, copying of works protected by patent and copyright has been regarded as a form of piracy and as supporting terrorism.  Today, an article in the New York Times described ‘patent terrorism’ as the enforcement of patent rights by holding companies.  A few years ago, Microsoft officials even accused Apple of being a patent terrorist.
Lets get rid of this terminology.  A company that uses the courts to enforce a patent is not a terrorist.  To use these words so liberally will quickly dilute their meaning and leave us confused when we encounter the real terrorists.

14 thoughts on “Patent Enforcement is not Terrorism

  1. I’d be interested in an updated GoogleAnalytics chart (may be two with about six weeks coverage), just to see if the effect did wear off after a while and also, did others link to your new name with the same link-text (allinurl:…). I hope you will publish a follow up.

  2. Many kudos to “oh phooey on you crybabies”(?)

    The very fact that we are having this discussion speaks to the gullability of the general public and widespread accptance as truth of just about anything that is 1) repeated more than twice or 2) written in a substantially popular media outlet.

    If one were to assume that the rigid and aggressive enforcement of the consitutional rights granted to an individual under a patent were tantamount to “terrorism” then we would also have to assume that the oppressive business procedures or onerous litgation tactics of infringers (a la Ford company and the intermittent windshield wiper inventor) or negotiation tactics (a la Microsoft’s movement away from Burst’s streaming technology during negotiations only to come back to it after they thought Burst was dead and gone) also amount to the same piratic or terroristic behavior.

    What Phooey has so elegantly pointed out is that it is business ethos that is at stake here. When one has a patent and there is an alleged infringer of which he is aware does he act in an ethical manner in persuing his rights or does he not? When faced with a prospective patent holder alledging that your device infringes his patent do you react in an ethical manner or not?

    These questions are not headline fodder and so do not make news.

    However, due to the previously mentioned public proclivity for spicey headlines we are now faced with the prospect of legislative changes that will make enforcement under the U.S. patent system look more and more like China’s rather than the opposite.

    How is it that congress can feel comfortable subjecting a 13 year old who downloads an obscure song on the b-side of a forty five from the seventies that nobody has heard or wanted to hear in at least 20 years to potential criminal liability, yet find as a victim someone who has been proven after a full jury trial and appeal to the highest courts in the land to have willfully stolen technology from someone else?

    My vote: PR and the gullable mentality of man.

  3. I must agree with the last poster. Dennis, you need not countenance any arguments that patent enforcement could ever amount to anything akin to terrorism.

    Patents are supported by the constitution, and as we all know, enforcing or threatening to enforce our legal rights is never terrorism. It may ‘intimidate’ the accused infringer, but it’s nothing more than hard bargaining.

    The business world is a tough place. I would love it if lawyers would only send letters and make threats that were backed up by a valid position. But business is business, and some level of brinksmanship and bluffing must be expected sometimes. This is nothing like terrorism and could never possibly be considered such. Pure hyperbole.

  4. “Patent Enforcement is not Terrorism”
    –- Dennis Crouch/

    **I concur.**

    If it is no less than the Constitution that calls for the existence of a system of patents, then patent lawyers, in enforcing an issued patent, are doing no less than defending the Constitution. Is it being insinuated that acting in the defense of a part of the Constitution of these United States of America, is tantamount to terrorism?

    If one doesn’t like the idea that the originator of a novel and (hopefully) useful “art” can be granted an entitlement to control who gets to make use of that art, then may I suggest that one relocate to another, and preferably suitably lawless country. At this snapshot in time, and God willing for only a brief snapshot in time, might I suggest Iraq as it is asymptotically close to lawless.

    If one doubts the validity of an issued patent, then by all means please do contribute to the unearthing of new and relevant prior art; and truth and justice will be in debt to you and historians will chronicle your contribution.

    But if it is the “ramifications” of a legitimate patent that are unacceptable to you, though that patent has passed the test of validity as defined by law, then perhaps what is needed is some honest soul searching, directed at uncovering those deep-seated psychological demons responsible for it being so. If Freud were alive today, maybe he would venture to explore just what it is about inventions and inventors, patents and patent lawyers, that brings out the most malignant reactions and behaviors in people. Perhaps Sigmund would find that it is the “harem mentality” that gets invoked, in the minds of the (predominantly male) populace who react by displaying a burning desire to flame unwitting inventors and patent attorneys out of the proverbial village, for their sins against the non-intellectual-property-generating masses. The “harem mentality”: the innate desire to destroy all other males so that he alone will be able to have and to hoard a harem. Mentally programmed into males during the primordial hours of our species. Harem/monopoly. Monopoly/harem. Intellectual-property-monopoly/patent. Patent/harem. Surely no red blooded male can allow – can tolerate, the mere idea of anyone being granted a monopoly over that which he himself, under more auspicious circumstances, would lust to have a comparable monopoly over. Women. Fruits of the mind. Po-tay-toe or po-tah-toe.

    Certain recent high profile patent cases, and one in particular, come to mind. The totally out of proportion vehemence elicited by individuals quite literally throughout the world, over the “outrageousness” of a certain party being granted a patent for a certain invention, all point toward a dark underlying psychology. And when certain members of the supposed intellectual elite add their voice to the “outrage”, decrying that society will be harmed if a certain patent is valid, and thus it must therefore be invalid (what lovely logic from that certain “board certified” Royal rubber stamp seal of approval recipient genius-man), one has to wonder whether impartiality and even reason have already been “burned out of town” like Frankenstein’s monster.

    “Patent Enforcement is not Terrorism”. It is not.

    But that is not to say that there aren’t those of us who believe that there should be more “intellectual property altruism” in practice. “I own this patent which empowers me with certain rights. And I choose to exercise those rights in a way that benefits society. And I welcome suggestions on how to accomplish that. But I have my needs also, so please recognize that. And it is my hope that if we can be sensitive to our mutual needs, and honest, and above all fair, that we can achieve a very satisfactory equilibrium.”

    “Patent Enforcement is not Terrorism”. But sometimes it might be motivated by a less than publicly appreciated level of “intellectual property altruism”. But at the same time, in all fairness, altruism is an option, akin to holding a door.

  5. Wasn’t there a case involving Intel being sued for defamation after it called a patent holding company a bunch of patent terrorists? In any case, this is why I use “patent troll”. Trolls hide under public bridges and then just as you are crossing threaten you until you pay them to cross. I think the analogy is more apt.

  6. We’ll see how the piracy theory plays in court — MPAA filed a number of lawsuits today against alleged pirates who illegally shared movies. Headline: TERRORISTS SUE PIRATES?

  7. And, of course, there IS one more thing to add: If the metaphor of terrorist is inappropriate for companies defending their patents, the metaphor of the pirate is WILDLY inappropriate for those who trade copies of materials for which they don’t own the copyright. Pirates would steal all the goods from another ship they encountered, kill the crew, and burn the ship at sea. So far, no music or movie studio has reported a single instance of a P2P file trader stealing or destroying a master recording from the studio’s library, murdering even one artist or studio executive (much less an entire department), or burning a studio to the ground.

    Perhaps it’s time that we demand less overblown metaphors all around.

  8. Hoagus, You raise some good points. I think that you are right that there is some point where a lawsuit may become something akin to terroristic — someone who is skilled in the law can use suits and the threat of suits to strike terror in an individual. I don’t see this happening today in the patent world — although it may at some point. Traditionally, patents have been used defensively — just like nuclear weapons. Major manufacturers have built-up arsenols to ward of any competitor who thought twice about suing for infringement. Things have changed. Now, holding companies are buying up patents and are prepared to sue to enforce their rights. This makes patents more valuable and a more sought after commodity. At this point, I don’t think that anyone knows whether this shift in the patent world will have a positive or negative effect on innovation and the economy. Only time will tell.

  9. OK, so you’re removing the “intimidation” factor of your previously defined terror criteria, and you only want to restrict the use of the term “patent-terrorism” where it’s used in relation to large businesses?

    Is it still OK to call it patent terrorism when it’s used against individuals? Or purely to stifle competition by means of financial oppression? Or by patent mills who have no business other than to extract funds?

    Certainly there are valid reasons for patent defense, but it’s becoming increasingly used as a weapon. That part of it needs to stop. And that’s why the media has started combining the terms patent and terrorism. Never threaten a man who buys his ink by the barrel. He might start printing things you don’t like.

    BTW, I appreciate the fact that you chose to respond, rather than simply deleting my comment. That would have been easier. After all, I’m using your ink here.

    It’s a discussion that needs to be thrashed out, not papered over. I’m no expert, so I’ll leave the rest of it to those who are.

    Hoagus

  10. Hoagus, thanks for the comments. I have two responses.

    1) First, the companies that are claiming to be held up by “patent terrorism” are major corporations. As I mentioned, Microsoft accused Apple of patent terrorism. Likewise, the NYT article concerns the possibility that a holding company will buy up a set of patents and sue the big manufacturers. For these companies, the language of “terrorism” is simply a PR move.

    2) Second, I am not convinced that a patent lawsuit filed by one company against another could ever be considered terroristic. There is no real threat of violence or even jail-time.

    – Dennis

  11. You say:
    “Terrorists use bombs and other forms of violence and intimidation to achieve their political objectives.”

    Isn’t an attack by high-priced lawyers a form of intimidation? Don’t pretend this isn’t a common practice. Someone without money to defend against this form of intimidation will feel terrorized into submission.

    That’s why it’s called “patent terrorism.”

    Hoagus

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