The Pirate Party

I noted with interest that120px-skull_and_crossbonessvg1 the Swedish Pirate Party won a seat in the European Parliament last week.  I’d never heard of them, but found to my surprise that they are the third largest party in Sweden.  Moreover, many other countries, including the United States, now have a Pirate Party.  So what do the pirates stand for?

While I won’t list the whole platform (it varies from country to country), the Pirate Party clearly supports a radical reduction in intellectual property rights.  The U.S. version calls for the repeal of the Digital Millennium Copyright Act, the end of digital rights management, support for file sharing, and a return to a 14 year term for copyrights as provided in the 1790 Copyright Act. 

Most of these goals are nonstarters, but there is one idea in their platform that may gain traction. The Party argues that “[p]atents which fail to be developed or have significant progress in any four-year term should be unenforceable.”  At a patent law conference that I just attended, there was a lot of discussion about how the PTO and the courts should handle patents that are not commercialized.  In recent years, these patents have (generally) been fully enforced.  The problem with that, of course, is that these are often the patents that lead to nuisance litigation (patent trolls) and provide less value to society than ones that are actually developed or licensed in good faith.  

I’ve taken the position that one way to deal with this would be to impose large maintenance fees (i.e., taxes) on dormant patents.  Others suggest that patents that are not developed or licensed should be construed more narrowly after a certain period of time.  Or maybe they should be unenforceable as the Pirate Party suggests.  In any event, this is a serious issue.

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4 Responses

  1. A.J. Sutter says:

    What does it mean to “develop” or “commercialize” a patent, and what is a “dormant” patent? This terminology might make some sense if a patent were an affirmative right, but it’s not — it’s only an exclusionary right.

    Suppose someone buys an exclusive license under patent ’00X, but never produces any product that would otherwise infringe ’00X’s claims. Maybe you could argue that the licensor has “commercialized” the patent. But you could also object to this usage, given that there isn’t any product on the market that would otherwise infringe the patent. Moreover, if we do call this “commercialization,” we thereby bless a lot of troll behavior.

    Now suppose a company obtains patents ’00X and ’00Y, both claiming semiconductor wafer susceptors with internal heaters, but each claiming a different technique for shielding the heater from RF noise. Such shielding is beneficial for depositing reliable thin films in a plasma enhanced chemical vapor deposition (PECVD) process, which is one of the basic manufacturing processes used to make the zillions of microchips you rely on daily. The company actually does sell susceptors, both as components of PECVD chambers and as spare parts, that are within the claims of ’00X. It doesn’t sell any products that are within, or having components that are within, the claims of ’00Y.

    In this second hypo, is ’00Y “dormant,” or is it “commercialized”? I couldn’t say. But does it have commercial value to the company? Probably, and the company sure thinks so, because it prevents competitors from selling a design-around product that could compete with a product the company actually is selling. This kind of patenting strategy is part of the basic nuts and bolts of industry. How would your discriminate, for purpose of your higher maintenance fees?

    Finally, if you really do want to stick to a narrow definition of “commercialization” and “[non-]dormancy” that the patentee or exclusive licensor actually be marketing a product that falls within the patent’s claims, query whether this might inspire lawsuits for the purpose of showing that a patentee’s product doesn’t fall within the claims of the patent at issue. But this potential problem is speculative, whereas the others I’ve mentioned are from real-life.

  2. It’s very interesting to see the Pirate Party movement viewed from the perspective of a Professor specializing in Intellectual Property law. When talking to the general public (in my role as the leader of the British Pirate Party), I find that the need for some sort of patent law reform to deal with ‘patent trolls’ is actually quite a tough idea to get across, while the argument in favor of radical copyright reform is far from being a non-starter, it’s actually the key issue that the public almost universally understands and agrees with.

  3. Gerard Magliocca says:

    Hi Andrew,

    That makes sense to me. The difference, I think, is that the elites and interest groups concerned with copyright are very much against your idea. In patent, opinions are more divided.

    Good luck! It’s nice to know that the blog has a global reach.