On February 20, the Wall Street Journal decided to publish an Op-Ed by the Patent Counsel for Immersion Corporation – a tech and patent shop which most famously owns the patent on the "force feedback" technology we all turn off on our gaming consoles. And while I am sure Ms. Peter and I would agree on the importance of IP, our mutual affection for patents, and the passion that only a good licensing deal can bring, she does an enormous disservice by equating patent trolls to technology creators. In a ham-handed attempt to attack the patent system reforms currently under consideration in Congress she suggests that "small business" will be harmed by the myriad of suggested reforms, and we should look more kindly upon the creatures dwelling under the bridge.

Let me be the first to say that I can’t define a patent troll, and I think anyone who says they can is just spoiling for a fight. If you believe in a strong patent system where a property right is derived from the issuance of a patent, and that property right can be sold, transferred, bartered or given away to a commune, then you are going to have a hard time defining what a troll is. My own opinion is that the defining characteristic of a troll is that they work with patents that never should have been issued. The quality of the specific patent defines the caliber of the action brought. A Rembrandt nude is art, the Hustler centerfold is porn – and the best definition of a patent troll is the same as it is for porn: I can’t define it, but I know it when I see it.

So when Ms. Peter sticks up for porn, err trolls, she steps into the muck and mischaracterizes the state of play for small biz innovation.

Let’s look at Ms. Peter’s claims:

She starts off with the suggestion that changes in “continuations” would hurt the little guy. She’s factually wrong, but more interestingly, philosophically wrong. She slides along the slippery slope, suggesting that ‘it’s just too tough to file all the right claims at the beginning, and people need more time’. But she speaks to Immersion’s true intent in this sentence: "potential value of a component invention is not apparent until a market develops later".

At the core level, getting a patent is about the idea. Waiting "for the market to develop" means waiting to profit off of someone else’s ideas and hard work marketing them. While there is not, nor should there be, a working requirement for a patent, the patent should describe the exact use you intend for your idea. Otherwise it would be like patenting a shovel only to later claim that teaspoons are covered as well.

What she is suggesting is a throwback to the bad old days before the last attempt at patent reform. In that bygone era, a patent filer could delay the release of a patent by as much as 40 years by abusing publication and continuation. This bad actor would change the claims and modify the scope in order to ‘rise from the depths’ to sue companies who had created a market though their own ideas and hard work. This practice of ‘submarine patents’, which reached its apex with a man named Jerome Lemelson, was mostly removed by Congress in 1999.

Yet to some extent it persists.

Forgent had a patent on a product that would allow you to save a ‘video voicemail’ – but used this concept to claim that TiVo and other DVRs were infringing – because time shifting TV shows was really no different. Creative did the same with their infamous iPod patent – they altered the claims long after the first iPod had been released into the marketplace. These were not innovative new ideas, these were nothing more than "me too" actions by companies who happened to have a patent in the hopper. Ultimately, patents are about incentivising innovation, submarine patents are about incentivising idea plagiarism.

In order to fix this, the proposed legislation would give the USPTO Director the authority to limit the circumstances under which continuation applications may be filed. But it also states that no regulation by the Director "may deny applicants an adequate opportunity to obtain claims for any invention disclosed in an application for patent.’’ So if it really is your idea and your intent, you’ll have the ability to get a continuation. It looks like a good compromise.

Secondly, she’s right that big companies are looking for ways to get another shot at removing "bad" patents. But the problem lies more with the USPTO than the solution offered by big companies. Small businesses would not support anything that de facto or de jure’ lowers the property right that is created through the issuance of a patent. However, all companies, regardless of size, are desperately concerned about the proliferation of poor quality patents. Everyone is looking for an answer, and it’s possible that the tech industry may view "poor quality" differently than the USPTO. That may be the fundamental problem we need to address. Because without a fix for the issuance of bad quality patents, the current post-grant reforms are a bandaid on a dangerously ill patient. Everyone should be focused on the quality question first, litigation reform second.

Finally, she’s just plum wrong about the increase in material costs to file a patent. Filing fees will NOT go up under the existing proposals because all the reform is happening AFTER the patent is granted! So assuming she isn’t just misinformed, I can only guess that she means small companies will be confronted with the high cost of seeking protection, while at the same moment having to contend with high cost patent litigation brought by others. In fact, most folks think that all the post grant reform will bring a cheaper method of fixing patents within the patent office, rather than though million dollar litigation. Regardless, Ms. Peter is just FUDing on the cost issue

However, we all need to take a step back and ask if the PTO has the money and the talent in place to take on the new post grant burdens Congress is considering. If they can’t handle the load, then we’ll all be heading back to the courts, with even greater uncertainty as to the real validity of the patent. Questions about the practical impact of a second window are warranted, because they have the potential to structurally impact the property right created by the patent itself.

I agree with her on the need to reduce costs in patent acquisition and in defending against patent infringement law suits – especially if the law suits are frivolous. But frivolous law suits may be reduced by providing more effective reexaminations AND introducing better post-grant opposition. So, we agree that there is a disease – but disagree on the cure.

Ms. Peter should not use the very real concerns of small business about the state of the patent system to mask a plea for more litigation revenue. Small business depends on IP to give us an equal seat at the table when negotiating deals with the big companies who would otherwise roll us with lawyers and staff.

Don’t pretend that "me too" patent hucksterism is the same as getting fairly compensated for a great idea.