Our resident sage Lloyd McAulay, a patent attorney and political activist, comments on the patent trolling controversy:   Much concern has been expressed by studies showing that over half the patent litigation is brought by non practicing entities (NPE).  They are called trolls if you don’t like them.  Some, perhaps most, of recent doctrinal “refinements” by the Courts seem to be informed by a concern with the abuse of NPE litigation.

Much patenting is to protect a company’s financial investment in developing, testing and marketing new technology.  Few would dispute the value of such. Patents that give exclusivity to  a company encourages investment in research, development and marketing.

A significant amount of patenting is by research individuals and other entities (often university based) for the purpose of developing new technology for license or sale to others.  Few would dispute the value of such.  Let us call them “non practicing inventive entities” (NPIE)

What raises concern is the use of patents by NPEs that are not NPIEs in contexts.  There are too many cases where a patent owned by a NPE inhibits further improvement.  Such patents often  represent a low level of investment development in which a smart guy lays out a novel approach in a computer assisted method of doing business.  Often the patent gets a scope of claim protection  beyond what is taught and contributed.  That is, if there is any invention at all, the claim scope goes too far.  In such cases, the award of patent coverage inhibits further development by an amount that is not worth the value to society of the invention on which the patent is based .

Ideally, the courts should look to what patent exclusivity is  necessary, or even useful, to encourage the investment required to develop, test and market the invention.  As a practical matter that is too demanding in time and cost to warrant such an inquiry.   We basically have doctrines which can be used for that economic evaluating purpose.  They need to be used with that purpose in mind.

I suggest that in considering (a)  claim scope (validity and infringement), (b) infringement damages and (c) appropriateness of an injunction, the following factors be part of what is  considered.  Many of the following have at times been termed secondary factors of non-obviousness.  They are all relevant to the purpose of encouraging  investment:

1. Whether or not the product has been marketed by the patent owner or licensee
2. Whether or not there has been industry or professional recognition of the invention.
3. The amount spent to develop, test and market the invention.
4. Determining whether or not the invention would have been developed and marketed without the lure of patent exclusivity.
5. Whether or not others have licensed the patent
6. The dollar amount of product sold that incorporates the patent.
7. The degree to which the alleged infringer has copied the invention; either by copying the teachings in the patent or by copying the product manufactured by the patent owner.
8. The importance of the problem addressed by the inventor
9. The length of time that the problem addressed has been recognized as a problem.
10. The extent to which the invention employs or requires new technology.

Hoping to become the Middle East’s legal hub, in 2011 Dubai International Financial Centre (DIFC) threw open its courts to disputes from any country, provided both parties agree to be bound by its decisions. The attraction is that the courts use the English language and operate in public under English-style common law (Scotland has a different legal system). This makes the legal process more transparent and much less risky for Western firms, which are put off by the reputation of Dubai’s local civil-law courts for favouring Emiratis over foreigners, according to Will Buckby at Beale & Company, a law firm.   British lawyers in Dubai

Since CEO Jeff Bezos’s 60 minutes showcase of Amazon’s unmanned drone delivery service, many have written the interview off as just another PR stunt to boost holiday sales. Considering the technology is estimated to be over a decade away, the doubters are most likely correct. When digging deeper though, Bezos’s latest octocopter obsession illuminates Amazon’s purpose perfectly, becoming the largest retailer on the planet (and not just online).

Unfortunately, these droning delivery men also reveal what Amazon believes to be their core hurdle in achieving this goal: competing with local brick and mortar retailers who also sell 95% of Amazon’s products. To combat this, Amazon has spent billions of dollars building Amazon Prime (guaranteed 2-Day delivery), purchased numerous urban locker shipping companies to circumvent the “I wasn’t home for my package” problem, and even brokered a deal with the US Postal Service to begin delivery on Sundays.

This intense focus and spending begs the question though: Do Amazon shoppers truly value and care about receiving their items almost immediately?  Insights for Entrepreneurs from Amazon’s Drone Program

Crowdfunding is a billion dollar business and growing by leaps and bounds.  W-T-W is looking at the phenomena from all angles and is presenting the SEC’s initial documents here.      SEC Crowdfunding

If you had to pick a city on earth where the American investment banker did not belong, London would have been on any shortlist. In London, circa 1980, the American investment banker had going against him not just widespread commercial lassitude but the locals’ near-constant state of irony. Wherever it traveled, American high finance required an irony-free zone, in which otherwise intelligent people might take seriously inherently absurd events: young people with no experience in finance being paid fortunes to give financial advice, bankers who had never run a business orchestrating takeovers of entire industries, and so on. It was hard to see how the English, with their instinct to not take anything very seriously, could make possible such a space.

Yet they did. And a brand-new social type was born: the highly educated middle-class Brit who was more crassly American than any American. In the early years this new hybrid was so obviously not an indigenous species that he had a certain charm about him, like, say, kudzu in the American South at the end of the nineteenth century, or a pet Burmese python near the Florida Everglades at the end of the twentieth. But then he completely overran the place. Within a decade half the graduates of Oxford and Cambridge were trying to forget whatever they’d been taught about how to live their lives and were remaking themselves in the image of Wall Street. Monty Python was able to survive many things, but Goldman Sachs wasn’t one of them.  Review of Capital by John Lancaster   Capital

W-T-W.org will present a series of articles, audios and videos on this subject for the next two months.  This short piece gives a quick overview of the difference between the two main websites currently devoted to crowdfunding. Next week, we will present a discussion with two professors at the Jerusalem School of Business who had access to the records of 20,000 successful Kickstarter campaigns.  Kickstarter versus Indiegogo