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On Behalf of | Aug 10, 2016 | Wang IP Law Blog

In an effort to demonstrate the potential for abuse in the United States patent filing system, artist and engineer Alexander Reben is fighting against “patent trolls” with his project, “All Prior Art.” Reben’s project involves using an algorithm that pieces together random phrases and sentences from the entire U.S. patent database to generate “prior art.” If there is any known evidence that an idea already exists, it is considered “prior art.”

Under federal law, concepts deemed to be prior art may not be patented. As long as there is evidence that someone made or described something similar in the past, the idea may be considered to be prior art, even if the evidence will face stricter scrutiny in actual litigation. Reben’s work nonetheless serves as a statement against the loopholes in a system that allows patent trolls to obtain and “defend” intellectual property rights for ideas that they never planned on executing.

Prior Art Goes Public

To date, Reben has posted over 4.2 million computer-generated ideas on the internet as a public collection of prior art, licensed under Creative Commons. Although most of Reben’s ideas are meaningless, the process is so easy that it costs little to nothing to increase the probability of producing valid prior art. For example, one of Reben’s more sensical “ideas” is for an ad display that reads as follows: “A merchandising display system having a molded shelf unit containing a plurality of shelves and/or a pegboard for holding goods, and one or more graphic panels for displaying advertising or other information is disclosed.”

By combining different elements featured in existing patents, Reben’s algorithm creates seemingly “original” ideas that could theoretically be used against legitimate inventors – something that patent trolls often do, but for an ulterior purpose. While Reben’s goal is not to produce all possible prior art, it certainly starts a greater conversation about the need to prevent “trolls” from obtaining rights in the first place.

Who Are Patent Trolls?

Patent trolls include people or organizations that either file frivolous patents or buy them from others for the sole purpose of obtaining the right to litigate. They then track down potential patent infringers, or people whom they suspect will violate their patented ideas, and send out pre-litigation settlement letters in bulk. Patent trolls make their money by threatening to sue for the maximum amount under the law, but ultimately offering a settlement deal for much less. This way, recipients opt to pay the fee and move on to avoid the high cost of litigation.

For Reben, patent trolls undermine the purpose of intellectual property rights, which are meant to incentivize and reward innovation. While most patent holders intend to execute their ideas, patent trolls do not attempt to create or invent anything. Instead, they file or buy a large volume of patents for the purpose of pursuing litigation. Additionally, their schemes are made easier because of what is known as the “American Rule,” which is the general rule in the United States that each party will pay their own attorney’s fees. Conversely, the “English Rule” requires the losing party to pay both parties’ fees. As a result, patent trolls target individuals or small companies that are less likely to be able to finance a lawsuit, and more likely to settle for a lesser amount.

The Supreme Court Weighs In

For those targeted by patent trolls that choose to defend themselves, the U.S. Supreme Court has already taken steps to make sure that patent trolls are held responsible for bringing frivolous lawsuits. In Octane Fitness, LLC v. ICON Health & Fitness, Inc. (2014), the world’s largest maker of exercise equipment, ICON, threatened to sue a small manufacturer, Octane, for patent infringement regarding elliptical trainers.

After obtaining a summary judgment in their favor, Octane moved for attorney’s fees but were denied by the District Court. The High Court later reversed this decision and awarded fees to Octane on the grounds that if a patent lawsuit is deemed frivolous, fee shifting is appropriate. In other words, if a lawsuit is comprised of baseless claims, a Judge can use his or her discretion to award attorney’s fees to the winning party.

Moving Forward

Although the Octane court’s ruling punishes parties who pursue frivolous litigation, the decision only benefits those that actually reach a final judgment in court. Since attorney’s fees are awarded after litigation concludes, potential defendants still have to front the costs of litigation at the onset. Conversely, Reben’s algorithm aims to crowd out opportunities for patent trolls to obtain rights for the purpose of intimidating legitimate inventors. While Reben’s project does not exactly solve the problem of patent trolls, he hopes that his project will call attention to the flaws in the U.S. patent filing system that has allowed patent trolls to succeed.

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