University of Wisconsin versus Apple. Should universities resort to patent trolling?

Apple. flickr/Andy Langager, CC BY-NC

A US federal court has found that Apple infringed a patent held by the patenting arm of the University of Wisconsin-Madison. The patent describes a mechanism that could be used in speeding up processors and the Wisconsin Alumni Research Foundation (WARF), who own the patent, claimed that Apple has used this technology in the processors for its recent iPhones and iPads.

Apple faces potential fines of US $862 million if the court holds it acted wilfully in infringing the University’s patent.

From a public perspective, and especially the perspective of those that make up a jury, this is a simple case of a large private organisation wilfully stealing the invention of academics whose inventions are the result of years of research.

From a different point of view however, the actions of WARF are indistinguishable from those of a “Patent Troll”. These are organisations that don’t actually produce anything through their inventions but simply pursue the aggressive licensing of any technology that could be covered by one of the many patents they hold.

WARF makes top 10 of patent trolls

In fact, Business Insider put WARF in a top 10 list of patent trolls. Certainly they have all of the hallmarks of a patent troll. They don’t invest actual money in making any of their “inventions” actually work, nor do they manufacture, sell or support technologies that use these “inventions”.

What they do actually do, is to take organisations and people to court. They are currently involved in 9 different litigation actions including one that concerns how to treat patients with kidney disorders.

The Whitehouse declares trolls a problem for innovation

The problem of patent trolls or “patent assertion entities” was addressed by President Obama in 2014 in a call to action to try and stop what the White House saw as a growing trend that threatens innovation. Obama summarised the problem of patent assertion entities when he declared:

The folks that you’re talking about [patent assertion entities] are a classic example; they don’t actually produce anything themselves. They’re just trying to essentially leverage and hijack somebody else’s idea and see if they can extort some money out of them.

Wisconsin is not alone

The University of Wisconsin-Madison is by no means alone as a university engaging in patent trolling. In 2014, The University of Minnesota sued all of the major US telecommunication companies over technology in their 4G networks.

Carnegie Mellon University is currently in court in a billion dollar lawsuit against computer storage company Marvell Technology Group.

New York University and the University of Iowa sued pharmaceutical company Abbott over technology involved in the manufacture of the drug Humira which is used to treat inflammatory diseases such as Crohn’s.

It could be argued that universities are being pushed into taking these sorts of actions because of an increasing pressure to fund themselves, and especially the research that they do, from their own resources and not the public’s. Governments, including Australia’s, have even suggested that research performance and innovation should be measured by the number of patents a university holds, with ministers suggesting that universities should be funded according to this measure.

The problem is with patents themselves

The patent that WARF is disputing with Apple is similar to many patents, even those owned and defended by Apple itself, in that it is very broad and somewhat obvious. Chip manufacturers would have independently use the techniques described in the patent amongst many others, in the never-ending quest to boost performance of processors. Asserting an idea after the fact, without having been involved in the really hard task of actually making it a work is always going to be disingenuous at best.

Universities that invest money and large amounts of effort in litigating patents in this way are abandoning the claim of carrying out research for the public good. This is a particularly tenuous position to take if you are a public university, whose research was funded by the public in the first place. Their money is being spent on legal fees to obtain royalties, in part, for individuals who were also paid by the public to teach and research.

The appeal to universities that they act in the public good is highly unlikely to dissuade them from taking the legal path however. Any change will still need to come from a fundamental overhaul in the global intellectual property system.