Texas Messes with Innovation

Posted 01/29/2009 at 3:43pm | by Quinn Norton

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[Ed note: This edition of Byte Rights was originally published in our Holiday 2008 issue.]

Since childhood, I’ve bitterly wondered why I don’t have a jet car, or my own robot assistant and constant companion. I would call it Sally, and Sally would keep me organized and help me fight crime at night.

Part of the reason my future has failed me is abuse of the patent system, the part of IP that protects and fosters technological innovation. You can’t copyright an idea, but patents give you a limited time to develop and grow an idea yourself. However, the patent system hasn’t changed much in 300 years, leaving it flawed and exploitable. Nobody exploits the system better than patent trolls.

Trolls don’t make things, they don’t create jobs, they just buy up patents (often at bankruptcy auctions) and look for targets to sue, usually filing the suit in Texas.

Now I have to mess with Texas here, or at least a little place I like to call the U.S. District Court, Eastern District of Texas, located in the small town of Marshall.

Marshall is traditional and has a profound and unsubtle respect for property rights. Marshallites seem to take a “Trespassers will be shot” approach to intellectual property, making it patent troll heaven.

It’s even got a curmudgeonly old judge with no time for nonsense like comprehensive documentation or detailed oral arguments. Judge T. Ward confesses that his court is “plaintiff friendly”—drawing lawsuit filings from everywhere. The court tends to deny all motions to move cases elsewhere, making Marshall a sucking bog of litigation. Cases rarely reach trial. Defendants see the odds, do the math, and settle. In an age when tech is losing jobs and resources, it’s depressing.

But there’s a glimmer of hope. In a recent case concerning a Michigan company and an Ohio company, the U.S. Court of Appeals for the Federal Circuit ruled that Judge Ward and Texas had no business with the case and moved it to Ohio. This is the second time such a ruling has been made, and it’s beginning to look like cases might get out of Marshall and into more fair venues. You hear that technologists? I’ll have my jet car in red and my robot programmed with crime-fighting ninjutsu.

Quinn Norton writes about copyright for Wired News and other publications. Her work has ranged from legal journalism to the inner life of pirate organizations.