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Will Congress Enter The Patent Fray?

|Includes:AAPL, ACTG, CSCO, DSS, FORM Holdings Corp. (FH), GOOG, MGT, MSFT, VHC, YHOO

There is increasing attention that federal lawmakers are giving to patent law. This is certainly the pink elephant in the room that everyone ignores but is absolutely capable of ruining the party.

This really is a much more complex matter than most people give it credit to be. In many ways, what lawmakers decide to do will be incredibly groundbreaking in the sense that they will be potentially legislating on matters directly related to the core principles that underlie property ownership -- which is the foundation of democratic capitalism.

Both sides of this battle have extremely knowledgeable experts and attorneys ready to do battle, but the wild card that we can hope does not enter the fray is the unquantifiable influence of big company lobbying and back-door contributions, since we all know that this is one area where companies like VRNG, VHC, MGT, DSS, ACTG, etc simply have no chance compared to companies like GOOG, AAPL, MSFT, YHOO, CSCO etc who will certainly be on the other end of this legislative quagmire.

What is fascinating about this potential legislative action is that patent law as we have all known it to be for generations will be called into question.

If patents are issued with a shelf-life of 20 years, and most if not all of this time period passes without anyone being able to develop a comparably effective workaround, doesn't this by itself prove that this was an invention that was worthy of patenting?

In addition, if the invention is deemed so critical to society, then is the 20-year shelf-life not the reason that patents are not given lifetime protection? In relation to an inventor's lifetime or even an individual's career which can span 40-50 years (from the time an individual reaches adulthood until retirement), 20 years of protection does not even span half of one's career. After 20 years, any person or business is free to use the patent.

I see nothing wrong with the principles behind this system, which seems to balance the rights of a property owner with the greater good of society and competition.

If an invention truly is critical to the greater good of society and society's ability to function, then that is what the principle of "eminent domain" is for -- however, this principle is reserved for governments and should not be disguised as legislation and wielded as a tool by private parties (whether individuals or businesses) to manipulate legislators into using for resolving private disputes. Yes, there are instances where arguments can be made that private businesses have already found ways to convince governmental bodies to exercise eminent domain for private benefit, and each time it happens should give us all great pause.

Considering that companies like GOOG, AAPL, MSFT, et al have all engaged in less-publicized forms of patent trolling over recent years as they have all acquired patents that they did not invent for both defensive as well as offensive (i.e. monetization) purposes, it will be interesting to see how lobbyists and legislators craft and spin any proposed legislation to target only selected companies that acquire patents and sue for infringement, but not other companies who engage in the exact same behavior.

As such, it will be interesting to see how slick legislators can be in what will inevitably be a drawing of battle lines along the grounds of splitting hairs and narrowing the definition of "patent troll" to reflect only those companies that are NPE's.

I have no clue how this will turn out as both sides are more than capable of presenting compelling arguments. However, I would not be surprised one bit to see this issue go all the way up to the Supreme Court if Congress succumbs to the influence of big business and passes legislation that cripples NPE's and opens the backdoor for big companies to effectively take private property that has been fairly paid for by another party and benefit from it without agreeable consideration being paid to the property owner.

This would really be going down a slippery slope. For example, there are many investors in the midwest who have speculated that because a neighboring parish/county had oil under its land that the land they purchased might have oil under it as well, and so they made speculative acquisitions of acres upon acres of land and did nothing to develop it and made no attempts to utilize it for agriculture/livestock -- they simply let it sit empty and waited until an oil company came knocking and offered either a rich price to purchase the land or offer a lush royalty based upon the number of barrels that get extracted. Case law already exists that punishes oil companies from engaging in horizontal or diagonal drilling to get to the oil that is under adjacent plots of land -- which would be this example's equivalent to infringement.

This is just one of many examples that draw legitimate parallels to NPE's once you strip away the specific asset description and simply view it as "private property" that has otherwise been fairly purchased and paid for.

If legislators do not care to realize it, we can only hope that the courts will realize the implications that issuing legislation that is not based solely on the "what" of an issue but instead at its core divides the population up and bases its applicability on "who" you are (i.e. are you an NPE or a non-NPE?), is a dangerous game indeed. To paraphrase an Orwellian reference from Animal Farm: "All animals [replace with "businesses"] are created equal, but some animals [replace with "businesses"] are more equal than others." Scary thought but very possible that potential legislation could bring about such a society.


Disclosure: I am long VRNG, AAPL, GOOG.