Sometimes the problems engulfing the U.S. patent system can seem like a thousand shades of gray where it’s hard to sort the good guys from the bad. And then, at other times, the absurdity of the system just smacks you right on the face.
The latter is the case in a bizarre piece of patent litigation involving several companies, including The New York Times, a mobile technology that sends links through text messages, and an obscure inventor who has turned his patent portfolio into a weapon of mass litigation.
First, let’s introduce the players in this legal digital drama.
In one corner, we have Richard J. Helferich, an engineer based in Southern California who has been awarded at least 22 patents, according to a search of the U.S. Patent and Trademark Office website.
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Little seems to be known about Helferich. But his list of patents stretch back to 2002 and cover a range of mobile-related technologies that are assigned to a company called Wireless Science based in Chatsworth.
Helferich has also apparently created another company, Helferich Patent Licensing, or HPL, which has filed 23 lawsuits over the past four years against companies such as Best Buy and the National Basketball Association, according to a story by The Washington Post.
The strategy is pretty straightforward. The suits claim the company is violating a patent, but then HPL offers to settle for $750,000. The Post reported that about 100 companies took the deal, a roster that includes Apple, Walt Disney and McDonald’s.
This also appears to be the strategy being pursued in The New York Times case. Helferich holds a patent for the process of sending a text message containing a link to your mobile phone.
While patent law can be thick, patents are supposed to be awarded for inventions that are “nonobvious.” Sending links through a text message would seem to be both obvious and inevitable.
Fortunately, the Times has chosen to fight. It has accepted the legal challenge in court, and it has also appealed the underlying patent to the patent office.
In an interview with The Associated Press, the Times’ general counsel, Kenneth Richieri, noted there was a larger principle working here. The company doesn’t want Helferich’s patents to become a burden on activities that are commonplace in the digital age.
“In some ways, it’s a tax for being on the Internet,” Richieri told the AP. “Millions and millions of dollars collectively is going out of the pockets of people who earned it to people who, in my opinion, didn’t do anything.”
Besides the Times, other companies on the hook in this case are CBS, Bravo and J.C. Penney, according to court filings. Really, it’s a bit surprising any of them would choose the path of litigation. After all, $750,000 is chump change to such large corporations.
But just because he’s battling such goliaths, Helferich is certainly no David. What he’s doing is perfectly legal, and is entirely within his rights, given the patents are rightfully his.
And that goes to the heart of the matter. I’m sure Helferich is a wonderful guy, and maybe in his heart he believes he’s fighting the good fight for small inventors everywhere.
But unfortunately, he –and others like him — are being enabled by a system gone awry. Lawsuits like his have become a scourge. According to PatentFreedom, which does both research and consulting for defense attorneys in such cases, 5,073 U.S. companies were sued in patent-related cases by entities like HPL that hold a treasure chest of patents but have no operations.
“You really have to wonder what contribution they are making to our economy or our society, or if it’s just a drain,” Jason Schultz, director of the Samuelson Law, Technology & Public Policy Clinic at the University of California, Berkeley, told the AP.
I wasn’t able to reach Helferich’s attorney, David Lisa, for comment.
Despite recent reforms, the patent system can’t undo years of such patent awards. It appears we need Congress to figure out ways to curb runaway patent litigation.
I’m old enough to remember when “patent” wasn’t a dirty word. Sadly, rather than being the hallmark of achievement, patents have become another club to wield in court to pound your foes into submission.
Chris O’Brien is a columnist with the San Jose Mercury News.