Jefferson v. Patent Trolls: Postcolonial history

In the last post, we took a look at the She-Hulk’s patent confrontation. In this post, we will move away from superheroes and look at Thomas Jefferson’s own encounter with patents, according to Jeffrey Matsuura, the author of the book Jefferson vs. the Patent Trolls.

Before we begin, it’s important to mention that Thomas Jefferson was in many ways full of contradictions, most notably as a slaveholding believer in natural rights. If Jefferson were in a comic book, we wouldn’t be sure whether he was a hero or a villain. We will see that even Jefferson’s interactions with patents were at times inconsistent.

Patent Perspective

Jefferson viewed patent rights as a means to disseminate knowledge. In other words, for Jefferson, patents provided legal rights designed to encourage collaborative creativity and place inventions into society as quickly as possible. So in exchange for accessibility to inventions, Jefferson believed in granting limited monopoly rights to inventors. With this in mind, let’s take a brief historical tour of Jefferson’s varied encounters with patents, followed by a suggestion.

Jefferson the Non-Patenting Inventor

Many of the nation’s founders were citizen scientists, and Jefferson joined their ranks as a seminal innovator. Jefferson was a polymath who not only began his career as a trial lawyer but also was an inventor of many devices, including a plow. We could apply the traditional saying to him:

A jack of all trades is a master of none, but oftentimes better than a master of one.

As a renaissance figure, when Jefferson contemplated his own innovative endeavors, he believed that inventions should be useful in daily life. For example, his plow was focused on improving farm production. He put a lot of effort into documenting his invention, complete with mathematical formulas, so that farmers could build his plow for themselves. And to make his plow accessible to all, he did not patent his invention, even though he could have thanks to the federal Constitution.

Jefferson the Influencer of Patents in the Constitution

The Constitution (drafted 1787-89) summarizes the relationship between innovation accessibility and patent monopoly. Within Article One, the obligation of the government is to “promote the progress of…useful arts, by securing for limited times to…inventors the exclusive right to their respective…discoveries.” Although Jefferson was in Paris as Minister to France (1785-89) when the Constitution was drafted, it’s thought that he had an influence on its drafting based on his correspondence.

The Constitution tells the government what it is supposed to do but does not say how patent rights are to be implemented. As we will see next, Jefferson played a large role in defining that implementation when he returned to the US.

Jefferson the Patent Examiner

After Jefferson returned from France, he was appointed the country’s first Secretary of State (1790-93) by George Washington. In this role, he was an examiner of patent applications. As a patent examiner, he rejected some patent applications due to what he perceived as a lack of social benefit. For example, he thoroughly examined a sailing vessel’s onboard desalination system to provide drinking water for sailors. But he did not grant a patent because he was skeptical that this invention was the most effective system possible.

As a patent examiner, Jefferson felt the friction between ensuring that an invention deserves patent protection and lacking sufficient time to review a patent application. While Jefferson leaned towards a thorough review process, a simple registration process was implemented after 1793 that generally granted allowance to all patent applications, leaving it up to the courts to resolve patent validity. Eventually, in 1836, the patent system that we generally recognize today was enacted that created a balance between the prior registration slackness and Jefferson’s earlier examination strictness.

Jefferson the Alleged Patent Infringer

When Jefferson retired as the third US president in 1809, he returned to his plantation at Monticello. Later, he installed a new flour mill, which caused Jefferson to experience firsthand the tension between providing inventors enough incentives to disseminate their knowledge and giving patent owners too much power that effectively prohibits society’s use of inventions. Specifically, in 1813, Jefferson and other farmers were accused of using milling technology that was patented by Oliver Evans. Jefferson strongly objected to the validity of Evans’s patent, which was ironic because Evans’s patent was the third US patent ever granted—by Jefferson himself back in 1790. So Jefferson originally granted Evans the patent rights that, years later, Jefferson said were improper when he was accused of patent infringement.

Just to be clear, despite the title of Jeffrey Matsuura’s book, Oliver Evans was not a patent troll under a modern definition of that term. For example, although Evans did not sell mills, Evans’s invention was a practical improvement to milling, as opposed to being directed to a separate technology that mills utilized. So under today’s standards, Evans’s patent infringement claim would likely have been considered defensible, as the arguments against Evans’s patent had more to do with what was patentable in the early nineteenth century, as opposed to how Evans was asserting his patent rights.

Jefferson the Patent Licensing Negotiator

When Jefferson was president (1801-09), he negotiated the doubling of the size of the country with the Louisiana Purchase. So it should be no surprise that Jefferson was a skilled negotiator, who used those skills to resolve his dispute with Evans. Despite their differences, Jefferson and Evans were willing to communicate directly with each other to try to reach a resolution. In 1814, Jefferson explained to Evans his position that Evans’s patent was not novel based on Jefferson’s interpretation of patent law. Evans had an impassioned response explaining to Jefferson his business difficulties of monetizing his invention. Jefferson and Evans listened to each other carefully and eventually resolved their differences outside of the courtroom when Jefferson acquired a license from Evans that ended the litigation.

Super Listening Suggestion

The title of the book Jefferson vs. the Patent Trolls has a comic-book sound to it, but of course it’s not about superheroes. It’s clear that Jefferson did not have superpowers, as explained in the book Thomas Jefferson: The Art of Power. The author, Jon Meacham, describes Jefferson as “a breathing human being who was subject to the passion and prejudice and pride and love and ambition and hope and fear that drive most other breathing human beings.”

Yet the author points out that Jefferson developed one particular skill to an almost super level. That skill was listening, a skill that we can all improve. Jefferson recognized early in his political career that he was not a compelling public speaker, and so he overcame his speaking deficiencies by developing his listening abilities. He became attentive to others by caring about their perspectives. Thus he guided conversations to topics that he knew were interesting to others, and then followed their thoughts wherever they led.

Everyone likes to be heard, and we can all learn from Thomas Jefferson’s dedication to improve listening. In this way, we can strive to become super listeners ourselves.

Image: “freemont troll” (CC BY-ND 2.0) by MFer Photography.

Source: Matsuura, Jeffrey H. Jefferson vs. the Patent Trolls: A Populist Vision of Intellectual Property Rights. University of Virginia Press, 2008.

Source: Meacham, Jon. Thomas Jefferson: The Art of Power. Random House, 2013.

She-Hulk: Patent smash!

Like it or not, the Incredible Hulk smashes stuff. The Hulk at his core wants to defend the innocent from harm, but he also causes an enormous amount of suffering as he lays waste to anything in his berserk path. Patent litigation can feel like a collision with the Hulk. Both patent owners and alleged infringers will often feel smashed by patent litigation, regardless of who prevails. As patent litigation plods forward, it can abruptly careen out of control in startling ways. It’s kind of like the Hulk, who gains more gamma-radiation strength the angrier he gets. And like litigants trying to manage patent proceedings, Bruce Banner (the Hulk’s alter ego who is a brilliant scientist) cannot constrain the Hulk no matter how hard he tries.

Would you have guessed that Bruce Banner’s cousin, Jen Walters, became embroiled in patent litigation? By day, Jen is an attorney juggling client matters, but off the clock she’s the She-Hulk kicking bad guy you-know-what. While the Hulk behaves as a raging brute, Jen retains her intelligence and controls her temper as the She-Hulk, who gained her gamma powers from a blood transfusion with Bruce.

In the graphic novel, She-Hulk: Law and Disorder, Jen agreed to represent a patent owner, a widow of an independent inventor. The emerald heroine thought that she could quickly negotiate a settlement with the alleged infringer, the distinguished Tony Stark of Iron Man fame. However, Jen didn’t get to meet with Tony. Instead she was intercepted by Tony’s lawyer, who gave her the run-around. Jen abandoned negotiations, saying, “I’ll just see you in court.” But in court, things did not go well for Jen as she got inundated with motions from her opposing counsel, and each motion required her response. Later, the jade giantess felt discouraged and confided to her client, “I was thinking that the scope of this thing is getting a little out of control—I thought this would be a two-minute chat with Tony Stark.”

Disagreeing Without Being Disagreeable

Before the chaos began with out-of-control scope, the She-Hulk had the right idea to try to negotiate early. But if she had followed the Understanding Method of conflict resolution promoted by Gary Friedman, her goal would have been more than just a two-minute chat. If she and her client had really desired to understand the problem and work to a solution, three discussions could have occurred in patent mediation. Patent mediation can be especially effective when attorneys, managers, and technologists all participate to discuss law, business, and technology.

First, Discuss the Applicable Law

With the Understanding Model, the first discussion is about the law. For the She-Hulk, this discussion would focus on intellectual property. As Gary Friedman points out, the purpose of discussing the law is for the attorneys to educate the managers about the impact of the law on their case. This discussion is preferably done in three stages:

  1. Each attorney explains the strengths of each side’s legal position. The emphasis here is the impact the law will have on the parties, more than the substance of the law.
  2. Each attorney then explores the risks of each side’s legal position. This makes the law understandable for the managers who are already experienced with SWOT to strategically analyze business weaknesses.
  3. Next, each attorney describes the practical consequences of going to court if an agreement is not reached. Often, this is a description of the costs to attempt to reach a favorable ruling.

This systematic legal conversation could have provided the She-Hulk with an opportunity to share with her opposing counsel a cooperative, rather than an adversarial, view of the legal reality facing her client and Tony Stark. Such a cooperative view would have helped her client and Tony find a mutually favorable outcome.

Second, Discuss the Business Issues

After the managers understand the legal realities facing their companies, they discuss their business realities. Depending on the relationship between the parties, this discussion can take many forms, as mangers explain their business situation to each other. For the She-Hulk, her client could have explained to Tony Stark that she was in possession of additional repulsor technology from her deceased husband, and that she would like to license the trade secrets to Stark Industries, which could have significantly benefited Iron Man.

Third, Discuss the Technology

In patent mediation, it is not enough to understand the legal and business realities. Everyone should also understand the realities around the technology. To do that, technologists from both companies meet together to understand the technologies as presented in the patent disclosure and as implemented in the alleged infringement. In the She-Hulk’s case, there was a lot to understand around the repulsor technology that technologists could have clarified.

Negotiate Based on Understanding

After these three discussions have occurred, the parties can negotiate together to find a resolution. Of course, this patent mediation process is significantly longer than a two-minute chat that the She-Hulk had anticipated. While the process may appear time consuming, it could have avoided her client’s courtroom confrontation and empowered her client to determine beneficial settlement proposals.

Calm the Rage

Patent litigation is hard on everyone, even for someone as tough as the She-Hulk. Before getting too entangled in such a clash, it is prudent to try to reach an agreement through patent mediation as early as possible. But even with early mediation, both plaintiffs and defendants may feel Hulk-like rage at the patent enforcement process. Please remember that while patent litigation is often a grueling course of action to have a patent case decided, our patent system has historically been a world-class empowerment of citizens from all walks of life to be inventors. According to Marshall Phelps, a former VP at Microsoft:

The world’s first democratized patent system bequeathed to us by our Founders was the crucial engine that powered our industrial growth in the nineteenth century and made us the preeminent economic super power that we are today.

Speaking of our country’s Founders, in the next post we’ll look at a Founder’s own ravaging encounter with alleged patent infringement. His name? None other than Thomas Jefferson.

Image: “Universal She-Hulk” (CC BY 2.0) by JD Hancock.

Source: Friedman, Gary, and Jack Himmelstein. Challenging Conflict: Mediation Through Understanding. American Bar Association, 2008, pp. 137-69.

Source: Phelps, Marshall, and David Kline. Burning the Ships: Intellectual Property and the Transformation of Microsoft. Wiley, 2010, pp. 153-67.

Everest: Traverse intellectual property licensing routes

“Yeah, mate, I know, but you’ve got to keep on moving.” These were the words from Mount Everest’s Basecamp to Rob Hall, an expedition guide who was out of reach of rescuers. Rob had radioed that his hands were freezing and that he had to de-ice his mask. Basecamp, searching for ways to get Rob to safety, responded, “That’s good, you’ve got to get that mask working; the sun’s going to come up, you know; you can get warmer, you can get moving.” Alone and having expended all his energy to assist a fatigued client who did not survive, Rob now needed assistance himself. After determining that Rob was taking shelter in a depression at an outcrop just below the south summit, Basecamp implored, “All right, you can do this. You’ve just got to pull yourself out of that dip and slide the rest of the way. You’ve just got to come on down, mate. Come on down.”

The film Everest depicts this heartbreaking communication as well as the next day’s tender farewell between Rob and his pregnant wife patched in from home. As imperiled as Rob was by an immobilizing blizzard, words of hope nevertheless permeated the radio waves. Not only did Basecamp and Rob’s wife send encouragement to try to keep Rob alive, but Rob himself conveyed hope to his wife when he rasped, “I love you–sleep well, my sweetheart–please don’t worry too much,” as he signed off before his second and permanent night a hundred meters below the mountain’s summit.

Tie in to the rope of hopeful thinking

Hope is more than just wishful thinking. To use mountain climbing as a metaphor, hopeful thinking involves choosing your desired destination, believing you are capable of selecting a route to reach that destination, and having the self-determination to persevere in your traversal of that route. These three elements are described by C.R. Snyder with hope theory:

  • Goals (destinations) – Knowing where you want to go
  • Pathways (routes) – Staying flexible and figuring out alternative ways to get to your goal
  • Agency (determination) – Believing in yourself to achieve your goal and tolerating disappointments along the way

You can think of hope theory as a climbing rope that you can tie in for safety by setting a goal to pursue, visualizing different plans to guide you there, and resolving to make strategic changes to stay on course as you overcome obstacles and challenges.

Route selection for intellectual property licenses

Although scaling the world’s highest peak is an extreme example, it can inspire us to apply hope theory to negotiating IP licenses for technology transactions. In its most simplistic form, IP licensing can be thought of as paying for a permission. For example, a patent license can grant permission to use a patented invention in exchange for a royalty payment. In negotiations, both parties to an IP license are determining the valuation of the IP, as can be seen from the equation: permission = payment.

Unlike Mount Everest, which has few routes to the summit, you have the flexibility to define permissions and payments your way to meet your business aspirations. For example, you can define how the IP will be implemented (field of use), how long a license will last (duration), and what will happen to new ideas (improvements). In other words, there are many routes to an IP deal that gets you to your licensing destination.

Licensing flexibility is good news because IP is meant to foster innovation, and you can be innovative with each IP license. To use hope theory’s terminology, there are many pathways in the terms and clauses of an IP license, and your passion for innovation gives you agency to propel you toward your goal of an IP deal. So, stay hopeful in negotiating a technology transaction as you confidently assess workable routes to making an innovative deal that grows your business.

Pack hope theory to reach ambitious heights

Mount Everest is unattainable for most of us, but if you enjoy hiking in nature, then it is useful to follow the Survival Rule of Threes. Basically, this rule can help set priorities when lost in the wilderness. The numeral three is a memory aid for the rule that you won’t survive three minutes without air, three hours without shelter from extreme cold or heat, three days without water, or three weeks without food. We can add one more component to this rule: you won’t survive three seconds without hope. Whether you are navigating wilderness hikes or negotiating technology transactions, start your journey to success by packing hope theory’s goals, pathways, and agency with your gear.

Image: “Everest” (CC BY 2.0) by Mário Simoes.

Source: Snyder, Charles R. Handbook of Hope: Theory, Measures and Applications. Academic Press, 2000.