Patent trolls rack up legal and licensing bills.
The scourge of inventors everywhere are firms that collect and enforce patents of dubious value—with no intention of creating the invention described in those patents. They force large companies to rack up legal and licensing bills, and scare away startups from putting out novel products. These firms raise prices for all of us, and they generally slow down the future. Everyone hates them.
In theory, these patent trolls should be easy to defeat. Say a company tries to enforce some ridiculous claim, as in the recent case over a 1994 patent covering the entire “interactive Web.” It doesn’t seem hard to invalidate a patent that broad. All you need to do is find descriptions of that invention that date back to before the patent was filed.
The problem is that searching for old inventions is really difficult. Patents in the United States are keyword coded and searchable, but they use dense, technical language that makes them difficult to browse through. What’s more, “prior art”—a description of an invention published prior to a particular patent’s filing date—can exist anywhere, not just in a patent database. If I sue you for infringing my patent on an ancient Chinese healing technique, you’d have to look all over China for a description of the technique that was published in days of yore. But how would you know where to begin?
There’s an entire industry devoted to conducting such searches. When companies are sued for patent infringement, or when they’re proactively protecting themselves from an infringement claim, they often hire a prior art search firm to look for related inventions. But such searches tend to be expensive—you usually need to hire researchers in many different countries—and not all that effective, because even professional searchers tend to miss a lot of stuff. More than a decade ago, a young patent attorney named Cheryl Milone had a flash of insight for solving this problem: “I wondered, instead of looking for a needle in a haystack, what if you could ask each piece of hay if it’s a needle?”
That might sound like some kind of riddle, but Milone’s insight has transformed patent litigation. In 2008, she founded Article One Partners, a firm that invites amateurs to look for prior art and rewards successful researchers with cash. Over the last few years, Article One Partners has helped hundreds of companies discover prior art to defend against “nonpracticing entities”—jargon for patent trolls—and to protect themselves in new areas of innovation.
All those searches have resulted in a great deal of winnings. Article One recently announced that it has paid out $2 million in rewards to researchers. Some members of its patent-sleuthing community have even gone full time. A Canadian woman named Stacey Anderson-Redick, a former computer network administrator, is the site’s top earner. She’s made $75,000 in total patent-search winnings.
Why does Article One’s model result in better patent searches for clients? Milone cites several advantages. First, patent-search contests can attract researchers from all over the world, which is important because prior art found in any language anywhere on the planet is usually applicable in court. Second, because Article One’s search inquiries go out to a large crowd, there’s a good chance that someone in the group can solve a problem without needing to search for the solution. “That happens often, where people say, ‘Hey, I know the answer—I invented it,’ ” Milone says. Article One also encourages people of diverse professional and educational backgrounds to take part in its searches. “There’s a creative component—someone from a bio or pharma background might respond to a high-tech study, and they may come at the question very differently,” Milone says.
There’s also, of course, the money and the fame. Researchers who work in traditional patent search firms don’t get much recognition for their work; the legal business is, after all, a cloistered environment. Successful members of Article One’s community, meanwhile, are toasted on the site, and there’s a spirit of intense, friendly competition among the crowd. (Because of confidentiality agreements, members can’t work together to find prior art; they’re all competing against one another.) Winning a search will get you between $5,000 and $10,000. The company also pays out 5 percent of its profits to community members.
The site’s top earner, Anderson-Redick, told me that she had no legal experience before joining up with Article One. She signed up because she’s always liked doing research, and she was looking for a flexible job after her daughter was born. There was a steep learning curve to becoming a patent searcher; she had to get accustomed to the dense descriptions of patent filings, and she had to come up with new places to look for clues for prior art. “It became a matter of sifting through language to find key points,” she says. “You might go through six pages and then see, ‘Oh, this is just a timing device!’ ”
Anderson-Redick’s first successful search involved a patent on some kind of “technical device.” (She’s bound by confidentiality agreements from describing it more precisely.) Anderson-Redick read the patent and immediately remembered that she’d seen something similar in the past. “It was a free utility I’d found back in the days of bulletin boards,” she says. Searching the Web, Anderson-Redick came across Bitsavers, an archive of old software. She found and downloaded the utility, thus proving that the patent was bogus.
Anderson-Redick says that about a third of her successful patent searches occur this way—she sees a claim and it jogs a memory of something similar she’s seen before. Other times, she’ll dig through obscure databases and musty library stacks, falling into one rabbit hole after another in search of the winning answer. As Article One has grown, it’s attracted many more researchers, and the level of competition has decreased Anderson-Redick’s odds of winning. She now works full time on the site, and she says she’s successful in about one-fifth of searches. But she adds that she doesn’t do the job only for money. Once she goes off on the hunt, she can’t be shaken from the pursuit. “I just get a real joy out of finding these things for myself,” she says. In other words, killing patent trolls can be fun.
Photo credit: Inside Counsel