On July 1, 2013, I had the opportunity to once again speak with Ray Niro on the record in a discussion about patent trolls, non-practising entities and the near media circus that is engulfing the discussion and, in my opinion, obscuring the facts. The White House has weighed in, there are numerous legislative proposals circulating in Congress, and even some judges are dipping their toe into the unfolding debate.

There are bad actors, of course, but the issues surrounding the so-called “patent troll” debate are complex. In my opinion, there are abusers on both sides of the “v” in litigation.

With all this, who better to speak with than the man who was originally called a “patent troll” over a decade ago. See Why Bash Individual Inventors? For the entire interview with Ray Niro, see In Defense of Innovators: An Exclusive Interview with Ray Niro and The Man They Call the Patent Troll. What follows are excerpts from the interview.

Niro discussing Thomas Edison and the Wright Brothers and how these Hall of Fame inventors would today be considered patent trolls:

QUINN: [A]re we really at the point where Thomas Edison would be a patent troll? That question gets asked a lot and I think up until over the last, maybe over the last few months, it had always been sort of a tongue-in-cheek question, like… ‘you can’t be serious.’ But now where this is headed is Thomas Edison would clearly, clearly be considered a nefarious actor if you listen to [some of these anti-patent commentators].

NIRO: Absolutely. In fact, the Wright Brothers would be a classic example. The Wright Brothers invented the airplane. But, they didn’t have the resources and talent, maybe, to manufacture it. So a guy named Curtis came along and he started manufacturing the airplane using their ideas. Using their inventions and they brought patent suits for, I don’t know, eight or nine years before they ultimately prevailed. The Wright Brothers prevailed. They would be a classic troll today. Here they are preying on a manufacturing company for infringement of their patents while they manufacture nothing. Now, without the incentive of the patent system to create that invention in the first place, Curtis doesn’t have anything to copy. He doesn’t have the blueprint from the Wright Brothers. They would be a troll. Think of how ridiculous this whole thing is and put it in context — and I’ve heard this analogy frequently — suppose you were a composer that wrote a song but you couldn’t perform. Would you be deprived of the right to license your music because you couldn’t sing, you couldn’t perform? One of my favorite songwriters is Burt Bacharach. He’s a terrible singer. But you know what? He writes great music. He should not be deprived of the opportunity to have his music performed and to have protection under the copyright laws because he’s incapable of performing himself. That same concept, it seems to me, applies to patents as well.

Niro on the WiFi patents that his firm is enforcing on behalf of the owner:

NIRO: Well, one of the cases that’s received a lot of attention is this Innovatio which happens to be a case two of the lawyers in our office are handling. But amidst all the hoopla about how terrible it is that they’re out there enforcing patents in the Wi-Fi arena, what is lost in this discussion is that these patents come from Broadcom, a manufacturing company, just like Cisco. And those patents were licensed to the tune of nearly $1 billion, I think $900 million to QUALCOMM after a history of litigation. These aren’t so-called crummy, lousy, frivolous patents. These are serious patents. So again I think you have to go beneath the propaganda and look specifically at the instances where actions are being taken. I agree there are situations where there have been abuses, no question about it. And those can be addressed, and should be addressed. But let’s not, in this hysteria, wind up punishing people that have no reason to be punished. And let’s not create a disincentive for innovation in our country. The big debate during the election, again and I don’t want to politicize this either, was jobs. How do we create new jobs in America? Well, you don’t create new jobs in America by shipping 700,000 jobs to China, like Apple did. You create new jobs in America by creating opportunities for new businesses to be built on the basis of our ideas and our innovations. And when we create disincentives for that happening, we’re undermining the very thing that we want to be doing, which is creating jobs based on our ideas because we have long since stopped being an industrial society. We’re an idea-driven society, period. We don’t have the factories that we once had. We don’t have the businesses that we once had. What we have are ideas. And we better encourage innovation. We better encourage new ideas. And my big fear is that is what the West Coast boys — I wanna call them the West Coast boys– are doing…they are creating this hysteria. They’re creating this propaganda. They’re creating this aura of inventors and small entities being villains. And they’re selling that tune at the highest levels of our government, both to Congress and to the Administration and, unfortunately, to some judges. And that’s scary.

Niro discussing the animosity the public, media and elite companies seem to have toward fundamentally important innovations:

QUINN: … Are we at the point where these incredibly important innovations are going to create animosity rather than celebration?

NIRO: I think that’s a good way to put it. I think we are at a point where, if you believe the propaganda, then the remedies that are being proposed are really going to be detrimental to innovation, to individual inventors, and to the opportunities to use invention to create new jobs. So I see lots of negatives. If people really believed there was support for this notion that development of new products has been slowed or the cost to consumers has been increased or that the judicial system is clogged or, incredibly, this nonsense that contingency lawyers select marginal cases to bring lawsuits, I would support what’s going on. The “select marginal cases” argument is the most absurd proposition I have heard. And it could only be proposed by people, frankly, that have never represented a client on a contingency, because the last thing in the world that a good contingency lawyer wants to do is to pick a lousy case and pursue that. Now, are there lawyers that might pick lousy cases because they don’t have the opportunity to pick good cases? Yeah, I think that’s possible. But I think that is the exception, rather than the rule.

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