December 2, 2014
The Kosher Gourmet by Megan Gordon With its colorful cache of purples and oranges and reds, COLLARD GREEN SLAW is a marvelous mood booster --- not to mention just downright delish
April 18, 2014
Rabbi Yonason Goldson: Clarifying one of the greatest philosophical conundrums in theology
The Kosher Gourmet by Julie Rothman Almondy, flourless torta del re (Italian king's cake), has royal roots, is simple to make, . . . but devour it because it's simply delicious
: Trying hard to be 'positive' but never succeeding? Blame Your Brain
April 14, 2014
Rabbi Dr Naftali Brawer: Passover frees us from the tyranny of time
: First degree: How America really recovered from a murder epidemic
: When love is not enough: Teaching your kids about the realities of adult relationships
: How you can tell if your financial adviser is setting you up for potential ruin
: Up to 500,000 people die each year from hepatitis C-related liver disease. New Treatment Has Over 90% Success Rate
: Eating Watermelon Can Help Control High Blood Pressure
April 11, 2014
Rabbi Hillel Goldberg: Silence is much more than golden
: How to value a child for who he is, not just what he does
: A Simple Blood Test Might Soon Diagnose Cancer
: Have A Slow Metabolism? Let Science Speed It Up For You
April 9, 2014
Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?
Samuel G. Freedman
: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau
: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau
: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease
April 8, 2014
Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease
Electric 'Thinking Cap' Puts Your Brain Power Into High Gear
April 4, 2014
A life of love: How to build lasting relationships with your children
Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet
Why 50 million Americans will still have spring allergies after taking meds
Teacher keeps promise to mail thousands of former students letters written by their past selves
April 2, 2014
Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?
Get happy: 20 scientifically proven happiness activities
It's Genetic! Obesity and the 'Carb Breakdown' Gene
Jewish World Review
March 20, 2006
/ 20 Adar, 5766
Trolls and ogres
Rabbi Dr. Asher Meir
Who is this patent protecting?
Q: My company is facing a patent infringement suit
from a company that doesn't even work in our industry. All they do is buy
patents and then sue alleged infringers. Is this fair?
A: The phenomenon you describe is becoming
increasingly common. Such
aggressive firms are sometimes known as "patent
trolls," because they can
suddenly pop up like ugly monsters up from the misty
swamps of technology
licensing and demand money. Another explanation is
that instead of taking
out a patent to use it in a particular application,
like an angler
positioning himself in a particular cove, they go out
into the open water
"trolling" for unwitting victims to fall into their
The question of trolls is particularly relevant from
the point of view of
Jewish ethics. Secular law views patents mainly as a
way of encouraging
innovation, or as the US Constitution puts is, "to
promote the progress of
science and useful arts". Innovation is encouraged
when an inventor can
get paid for his invention, whether this payment is
through profits from
marketing the invention itself or from licensing or
selling the patent. So
this approach is basically amenable to the inclusion
of patent holders
who do no business themselves.
In this approach, the problem with "trolls" is not
that they don't do
business themselves; it is that if the patent holder
is only trying to
capture unwitting infringers, he contributes nothing
to innovation. On the
contrary, his whole business plan assumes that going
independently make the same inventions, not knowing
that the "troll" was
But in Jewish law, similar protections generally fall
under the rubric of
unfair competition. The idea is that when a
businessperson invests effort
in making a particular endeavor profitable,
competitors shouldn't be able
to take a free ride on his investment. For example,
the Mishna talks about
someone who takes the trouble to climb an un-owned
olive tree and shake
out the ripe olives; it would be unfair for someone
else to come along
and just pick up the fruit. (1) A passage in the
interestingly enough, to a fisherman who goes to the
effort and expense
of attracting fish using bait; it would be unfair for
a competing angler
to choose that exact spot to cast his line. (2)
Based on this approach, many authorities conclude that
protection in Jewish law because if a person invests
resources in a new
product or process, he deserves protection from
competitors taking a free
ride on his efforts. But if the olive-beater or the
fisherman abandon the
area, it would seem fair for others to take advantage
of the windfall. By
the same token, if the inventor is not using his
invention, it seems fair
that others should be able to.
But in fact the distinction is not so stark. After
all, if the person who
invested effort is unable by himself to enjoy the
fruits of his effort, it
does seem fair that he should be able to demand
something from others who
can. And the protection against unfair competition is
itself meant to
encourage innovation. So again, the very fact that the
inventor isn't in
the production business is no reason that he shouldn't
be able to license
his patent; the question is if he takes out the patent
in good faith.
An inventor may take out a patent in order to market
the product himself
or license or sell it to someone else who will do so.
But if he wants to
keep his invention a secret in order to trap an
innovator, he is stifling innovation, not fostering
it. The parallel to
the Talmudic case would be someone who secretly baits
a fishing hole,
then waits until another fisherman happens along the
same place and adds
his own bait! Certainly the first, surreptitious
actor doesn't deserve
any meaningful piece of the latter's catch.
Before we conclude that firms need protection against
the patent troll, the annoying little
monster who holds the giant firm for ransom because of
neglected patent, let us remember that he has an
industry counterpart: the patent ogre. This is my term
for the giant firm
that runs roughshod over the rights of the small
inventors, relying on
its huge legal department to intimidate them from
seeking their due in
court. Very often the little guy who looks like a
troll is actually the
victim of an ogre — a large firm which knew of the
patent or easily could
have found it in a patent search, but is evading its
the inventor by calling him a troll.
From an ethical point of view, the criterion in both
cases is good faith.
If the inventor intends to foster, rather than stifle,
his right to benefit from his patent shouldn't depend
on whether he uses
his patent, licenses it, or sells it.
If the large
firm knows that an
infringement suit is frivolous, they have every right
to use all of their
legal resources to deter opportunistic litigants. But
each side needs to
be careful to use the legal system to defend his own
rights, and not as a
means to intimidate others.
SOURCES:: (1) Mishnah, Gittin 5:8 (2) Babylonian Talmud
Bava Basra 21b
Every weekday JewishWorldReview.com publishes inspiring articles. Sign up for our daily update. It's free. Just click here.
THE JEWISH ETHICIST, NOW IN BOOK FORM
You've enjoyed his columns on JWR for years. Now the Jewish Ethicist has culled his most intriguing and controversial offerings in book form.
Sales help fund JWR.
JWR contributor Rabbi Dr. Asher Meir, formerly of the Council of Economic Advisers in the Reagan
administration, is Research Director of the Business Ethics Center of Jerusalem, Jerusalem College of Technology.
To comment or pose a question, please click here.
How many hours of work is too many?
Can I promote my product by having it unobtrusively written into a story?
He's not heavy he's my brother
All's fair in war?, II
All's fair in war?
Girth vs. worth
Is it proper to tax bequests?
Ethics of Being Overweight
Penalized for working swiftly
When is it a bluff?
'Rate and switch'
My paycheck is late!
Should schools cater to an elite?
All's fair in love?
Comfort and Competition
Do I need the caller's permission to put a call on the speakerphone?
Overtime for lost time
Is it unethical to play suppliers against each other to get the lowest bid possible?
Do family members have precedence in charity allotments?
What the world of business can teach us about our annual process of repentance and renewal
Are religious leaders subject to criticism?
Vindictive Vendor: How can I punish an abusive competitor?
Blogging Ethics: Is the blogger responsible for defamatory posts?
© 2005, The Jewish Ethicist is produced by the JCT Center for Business Ethics