Tara's Take

GraphOn’s act of asserting multiple patents against multiple parties has generated much comment by other authors. Some critics imply that because GraphOn obtained ownership of the patents through an acquisition (from Network Engineering Software, Inc. (NES)) that GraphOn is less entitled to assert patent rights. Critics also lodge complaints that the patents now owned by GraphOn do not deserve patent protection because the patents describe and claim inventions that are trivial, overbroad, or not new. As a result, they assert GraphOn should not be entitled to control the patents and obtain license fees from them. While these comments make GraphOn the current target, the substance of the criticism is similarly lodged at other entities who assert patents rights.

First is the criticism that the patent rights are unworthy of patent protection because of their breadth or lack of novelty. This is not a new criteria for patent owners. Every patent owner, especially one asserting patent rights against an infringer, needs to defend the strength of the patent. Patent owners who make relatively minor improvements over the prior art perhaps have a more difficult time than inventors who develop cutting edge technology. However, patent owners have always had to show the Patent Office and the courts that their inventions are new, novel and nonobvious.

The second criticism seems to asserts that patent owners who have not commercially developed their inventions are not entitled, or perhaps are not the proper entity, to assert the patent rights. It is not unusual that a patentee would assign his patent rights to a third party. In many cases by the time a patentee, especially an independent inventor, receives the patent, he has no more money and cannot find funding. In some cases, he is employed in a field separate and apart from the field of his invention. Often the patentee is unable to network the resources needed to commercialize an invention. Rarely can inventors engage developers, designers, or manufacturers to create a commercial product; they cannot get legal advice about forming businesses or entering business relationships; they cannot pay for the drafting of nondisclosure agreements or licenses. They do what they can. Very often all they can do is assign their rights to someone who might be able to get them some return on their investment of money, time and sweat equity.

If GraphOn’s claims fail, then they fail. But they should fail because the patent claims lacked the requisite level of invention, or the applicant failed to follow the requisite procedures, or the claims were not infringed. But if they do not fail, then GraphOn, like any other patent owner, should be allowed to exert the rights granted by the patent statutes, the right to exclude others from making, using or selling the patented invention.