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Evan Schuman: Supreme Court on obvious patents: Common sense isn't so horrible

Evan Schuman | June 25, 2014
Unanimous decision won't shut down patent trolls, but it will curb worst abuses.

One of the key reasons so many IT execs hate patent trolls — beyond the fact that they engage in extortion and are, well, evil — is that the patents they own are generally obvious and pointless. Consider that the typical patent troll attack will often dispatch threatening letters to more than 100 victims.

That gives rise to three possibilities. One, that the patent is for a truly original invention and that 100 companies coincidentally all had the same brilliant idea at the same time — and the patent troll was simply lucky enough to be the first to run to the Patent Office. Two, that it's a truly original invention and 100 dishonest companies all read the patent and all of them decided to steal that method, even though a few tweaks could have sidestepped the patent violation. Or three, that the patented idea is simply the obvious way any company would perform that action. (Process: take the money from customers and then hand them the product.)

The U.S. Supreme Court last Thursday (June 19) issued a unanimous decision that, although it didn't halt obvious patents, will hopefully slow them down. As for patent trolls, alas, the court offered no relief. Few trolls worry about legal matters, though, as their operations are shakedowns. Many executives — of both large and small companies — treat the troll letters as they would a nuisance lawsuit, in that they calculate that it's likely cheaper to just pay the extortion (a.k.a., license fee) and avoid the legal costs and the time executives will have to spend in depositions and replying to discovery along with court appearances.

This is akin to another horrendous business practice, where some unscrupulous companies will deliberately invoice customers for more than they actually owe, calculating that even if a small percentage of customers don't notice and just pay the extra amount, it's worth it. That's why they'll gladly reduce the amount for a customer who calls, waits on hold and demands it.

What the Supreme Court did — and the fact that it was unanimous means that we can avoid the usual accusations of politics that more lopsided Supreme Court decisions typically attract — was to cut back on how blatant an obvious patent could be. (My personal favorite analysis came from one of the legal folk at SCOTUS Blog, who penned: "Those of us who sweat in the clammy gymnasia of patent law have been waiting — with a mix of excitement, dread, and cynical disregard — for the Alice v. CLS Bank decision. The idea was, when the Court took the case, that we would finally have an answer to the question whether software can be patented under U.S. law. To say we did not get an answer is to miss the depth of the non-answer we did get.")


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