OPINION:
As patent protections come under attack, the experience of a sports-media technology inventor shows why we need to defend them.
The patent protection provided for high-tech inventors is under attack from two directions. Later this month, the Supreme Court will take on the fundamental question of whether software technology can be patented. At the same time, Congress is considering patent-reform legislation that would seriously harm technology innovators.
The consequences are huge, not just for patents, but for inventors like me who need to protect their inventions, and indeed, for our country’s future ability to grow through innovation.
My story illustrates the importance of patents for small businesses and individual inventors. In the late 1980s, my brother and I invented and patented a way of using telecommunications and computer simulation to allow fans to follow live sports events like baseball games on their home computers.
Our creation attracted much attention in the early days of the Internet and was quickly hailed as a “peek at sports broadcasting in the 21st century.”
Initially, the leagues and media companies ignored us, but eventually, they decided that computer simulation via the Internet might be a good idea after all. By the early 2000s, the technology had become widespread. It is now used by hundreds of websites to provide interactive services to millions of sports fans around the world. It was gratifying to see our technology proliferate, but we wondered what happened to the protection that we thought the patents would provide.
Unfortunately, our only option was litigation, and we sued Major League Baseball for patent infringement. We encountered all of the advantages that big guys have over little guys in court — money, time and lawyers. Fortunately, we were able to survive the battle. After five years and millions of dollars were wasted on both sides, we settled on the courthouse steps, securing our ownership rights, and a patent license for MLB.
The Supreme Court’s imminent decision about software-technology patents will hopefully resolve an issue that has confounded the courts and lawmakers and thrown the American invention process into chaos. It will have a wide ripple effect — deciding whether many patent applications are even allowed to proceed — and has the potential of hurting innovators around the country for whom software is a critical element of their invention.
Congress, too, is on the cusp of hurting small businesses and individual inventors. Most of the legislation is aimed at eliminating abuse of the patent system by so-called “patent trolls,” who file lawsuits against unsuspecting individuals — bullying them into settling so that they can avoid expensive legal fees, despite no evidence of wrongdoing.
No doubt, there is some exploitation — as there is in all forms of litigation. Some of the proposed remedies overreach and would seriously harm legitimate inventors, especially startups, who already face huge barriers when trying to use the U.S. patent system to protect their inventions.
One proposed remedy is “fee shifting,” where the loser in patent litigation pays the legal fees incurred by the winner. This remedy is attractive in concept, and would probably be a deterrent against abuse by some patent trolls, but it would be devastating for small businesses and individual inventors.
The problem is that little guys are already at a great disadvantage in litigation. Big guys with deep pockets can win, even when they are wrong, simply by outlasting the little guys.
While my brother and I were ultimately vindicated in court, the financial cost was immense. If “fee shifting” had been in place, the risk of litigation would have been too much for our nascent company. Even though we were the victims, we would not have been able to hold the big guys accountable for their wrongdoing.
As the Supreme Court and Congress seek to prevent patent abuse by trolls, let’s make sure we don’t also destroy the protections the patent system is supposed to provide to small businesses and individual inventors like me.
David Barstow is president of DDB Technologies and the lead inventor on five patents related to interactive sports-media technology.
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