TechLaw

Lawyers love terms of art, especially ones that lend a veneer of simplicity to an otherwise complicated topic. Take, for example, RAND terms (reasonable and non-discriminatory). It's sort of the legal equivalent of bubblegum and rubber bands, used by technology standards groups to paste over jigsaw pieces that don't quite fit together—namely, meshing patented technology with a standard designed to be widely adopted.

The basic idea is that the patent owner agrees not to act like an extortionist when licensing the patented technology to those who need it in order to implement the standard. But what it means beyond that is anyone's guess.

"Nobody knows what it means," Timothy Simcoe, an assistant professor of strategic management at the University of Toronto, said at a recent symposium on technology standards sponsored by the National Academies ("Designing Cyberinfrastructure for Collaboration and Innovation," Jan. 29-30, Washington, D.C.).

Rather than wait years for courts to tell everyone the term's true meaning, Simcoe urged a new approach. Patent owners would agree not to assert their patents after a date certain, in what Simcoe refers to as NAASTy (non-assertion after specified time). That time period could be along a sliding scale from zero (free) to the life of the patent (RAND). This would get courts out of the messy business of figuring out what is "reasonable," he explained, and allow the dispute to be decided by the calendar. Once the specified time period lapses, the patent owner would, in a sense, give away the technology.

Simcoe's proposal was not greeted by cheers from the hundred or so patent lawyers, technology administrators, and government officials gathered at the meeting. But you have to admire him for trying something new. And judging by the statistics he shared, there is a real need to rethink the patents issue.

IPR disclosures to standards setting groups have sharply increased in recent years, he said, with an "overwhelming" majority of those disclosures occurring in the information technology sector. Nearly 10 percent of those disclosed IT patents end up in litigation, whereas the typical litigation rate for all other patents hovers at just under 1 percent, he added.

Maybe it's time for some new bubblegum.