In this issue

Jonathan Tobin: Defending the Right to a Jewish State

Heather Hale: Compliment your kids without giving them big heads

Megan Shauri: 10 ways you are ruining your own happiness

Carolyn Bigda: 8 Best Dividend Stocks for 2015

Kiplinger's Personal Finance editors: 7 Things You Didn't Know About Paying Off Student Loans

Samantha Olson: The Crucial Mistake 55% Of Parents Are Making At Their Baby's Bedtime

Densie Well, Ph.D., R.D. Open your eyes to yellow vegetables

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

Caroline B. Glick: The disappearance of US will

Megan Wallgren: 10 things I've learned from my teenagers

Lizette Borreli: Green Tea Boosts Brain Power, May Help Treat Dementia

John Ericson: Trying hard to be 'positive' but never succeeding? Blame Your Brain

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

April 14, 2014

Rabbi Dr Naftali Brawer: Passover frees us from the tyranny of time

Greg Crosby: Passing Over Religion

Eric Schulzke: First degree: How America really recovered from a murder epidemic

Georgia Lee: When love is not enough: Teaching your kids about the realities of adult relationships

Cameron Huddleston: Freebies for Your Lawn and Garden

Gordon Pape: How you can tell if your financial adviser is setting you up for potential ruin

Dana Dovey: Up to 500,000 people die each year from hepatitis C-related liver disease. New Treatment Has Over 90% Success Rate

Justin Caba: Eating Watermelon Can Help Control High Blood Pressure

The Kosher Gourmet by Joshua E. London and Lou Marmon Don't dare pass over these Pesach picks for Manischewitz!

April 11, 2014

Rabbi Hillel Goldberg: Silence is much more than golden

Caroline B. Glick: Forgetting freedom at Passover

Susan Swann: How to value a child for who he is, not just what he does

Cameron Huddleston: 7 Financial Tasks You Should Tackle Right Now

Sandra Block and Lisa Gerstner: How to Profit From Your Passion

Susan Scutti: A Simple Blood Test Might Soon Diagnose Cancer

Chris Weller: Have A Slow Metabolism? Let Science Speed It Up For You

The Kosher Gourmet by Diane Rossen Worthington Whitefish Terrine: A French take on gefilte fish

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

Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Kim Giles: Asking for help is not weakness

Kathy Kristof and Barbara Hoch Marcus: 7 Great Growth Israeli Stocks

Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease

Sabrina Bachai: 5 At-Home Treatments For Headaches

The Kosher Gourmet by Daniel Neman Have yourself a matzo ball: The secrets bubby never told you and recipes she could have never imagined

April 8, 2014

Lori Nawyn: At Your Wit's End and Back: Finding Peace

Susan B. Garland and Rachel L. Sheedy: Strategies Married Couples Can Use to Boost Benefits

David Muhlbaum: Smart Tax Deductions Non-Itemizers Can Claim

Jill Weisenberger, M.S., R.D.N., C.D.E : Before You Lose Your Mental Edge

Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease

Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear

The Kosher Gourmet by Marlene Parrish A gift of hazelnuts keeps giving --- for a variety of nutty recipes: Entree, side, soup, dessert

April 4, 2014

Rabbi David Gutterman: The Word for Nothing Means Everything

Charles Krauthammer: Kerry's folly, Chapter 3

Amy Peterson: A life of love: How to build lasting relationships with your children

John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet

John Ericson: Why 50 million Americans will still have spring allergies after taking meds

Cameron Huddleston: Best and Worst Buys of April 2014

Stacy Rapacon: Great Mutual Funds for Young Investors

Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves

The Kosher Gourmet by Sharon Thompson Anyone can make a salad, you say. But can they make a great salad? (SECRETS, TESTED TECHNIQUES + 4 RECIPES, INCLUDING DRESSINGS)

April 2, 2014

Paul Greenberg: Death and joy in the spring

Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?

Mayra Bitsko: Save me! An alien took over my child's personality

Frank Clayton: Get happy: 20 scientifically proven happiness activities

Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene

Lecia Bushak: Why Hand Sanitizer May Actually Harm Your Health

Stacy Rapacon: Great Funds You Can Own for $500 or Less

Cameron Huddleston: 7 Ways to Save on Home Decor

The Kosher Gourmet by Steve Petusevsky Exploring ingredients as edible-stuffed containers (TWO RECIPES + TIPS & TECHINQUES)

Jewish World Review March 20, 2006 / 20 Adar, 5766

Trolls and ogres

By Rabbi Dr. Asher Meir

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Who is this patent protecting?

http://www.JewishWorldReview.com | 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 net.

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 concerns will independently make the same inventions, not knowing that the "troll" was there first.

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 Talmud refers, 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 inventions enjoy 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 unwitting competing 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 an alleged 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 responsibility to 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, innovation, then 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

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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.


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