The
approaching spring holidays are accompanied by great stories. In that spirit,
this posting departs from the usual format and offers a parable:
Once upon a
time in a city called Gotham, there were terrible problems with traffic
control. The problems were so severe that buses could not run on schedule,
ambulances had difficulty getting the sick to hospitals in a timely manner and
fire trucks often arrived at the site of a blaze after the building was only a
pile of smoldering rubble. The root of
most of these problems was parking. People in Gotham parked wherever they
wanted, for as long as they wanted to. They parked on sidewalks, in left turn
lanes, even in intersections.
The city
fathers met to discuss the grave problems caused by parking and proposed a
legislative solution. They added a paragraph in the city charter grant the
municipality the “right to exclude” parking from designated areas and
established a schedule of fines for those that parked in violation of the new
regulations.
The Mayor
held a press conference and signed the new paragraph in the city charter into
law in front of dozens of reporters. All
agreed that the city fathers had acted wisely. Nobody questioned the
municipality’s “right to exclude”. Everybody understood it was in the public
interest.
Signs were
put up to indicate “no parking areas”.
There was an immediate improvement in traffic flow in Gotham, but only
in the short term. Within a year, things
were as they were before the municipality’s “right to exclude” was written into
the city charter.
The city
fathers met again to discuss the grave problems caused by parking. They invited
the chief of police to explain why the new regulations were not being enforced.
The chief explained that his officers
were already overworked and simply did not have time to issue citations. He
added that in many cases where citations were issued, they went unpaid. He
theorized that all of this had created an atmosphere where citizens felt it was
safe to ignore the municipality’s “right to exclude” because the likelihood of
being punished was low. The city fathers
thanked the chief and discussed how to handle the problem of enforcement. A junior member of the council asked
permission to speak. His elders agreed and he stood before group to suggest
killing two birds with one stone. He pointed out that Gotham was always starved
for cash and proposed that they “monetize” the municipality’s “right to exclude”
by auctioning a five year license to the highest bidder. The entity submitting
the highest bid would receive the municipality’s “right to exclude” and have
access to all legal means to enforce that right. This would generate revenue
for Gotham and address the traffic problem at the same time. The elder members of council asked “Why will the
highest bidder succeed when the municipality has failed?” The junior member of the council answered “There
are two reasons: the first is that the bidder will be prepared to spend money
to make money; the second is that the bidder will have human resources to
devote to the effort.”
The auction
was held. Acme Inc. submitted the highest bid, forty million dollars
for a five year license, paid in a lump sum, in advance. All agreed that the city needed the money.
Nobody talked about the municipality’s right to transfer their “right to
exclude”. The public interest was not mentioned.
Gotham
licensed Acme Inc. to operate “Non Police Enforcement Patrols” to make sure the
municipality’s “right to exclude” was properly respected. The license granted
Acme the right to identify and prosecute violators with multiple citations as
well as to issue new citations. The chief of police provided a list of existing
violators with multiple citations.
Acme Inc.
got busy. They filed a motion in the district court to impound the vehicles belonging
to violators with multiple citations until the fines were paid. The judge
signed a temporary impound order. Acme Inc. also deployed five hundred people
to patrol the streets of Gotham and issue new citations. These employees were
issued orange vests with the acronym N.P.E.P. on the back. It wasn’t long before people began to refer
to them as “Trols”. Acme also deployed a
fleet of fifty tow trucks to implement the temporary impound order signed by
the district court judge.
Each day, thousands
of residents of Gotham received parking citations and hundreds had their cars
towed. This contributed to great progress
in restoring an orderly flow of traffic, but that was not in the news. Instead,
headlines reported “Trols harass citizens” and “Acme Inc. imposes tax on
mobility”. It wasn’t long until a citizens’
action committee was organized to fight the “tax on mobility”.
An attorney working on a contingent fee basis represented the
citizens’
action committee and filed a petition in the regional appellate court contesting the legality of the
municipality’s agreement with Gotham. The complainants filed a brief explaining:
‘These NPEPs do not make or sell
anything themselves. They seek merely to exploit the rights of others without
returning anything to society’.
The Judge,
who was up for re-election the following year sat on the fence between good
sense and good politics. He upheld the
legality of the agreement between Gotham and Acme. He also cancelled the temporary
impound order signed by the district court judge and ordered Acme to return all
impounded vehicles to their owners with due haste saying “there is no
irreparable damage in these unpaid citations which cannot be addressed with
future monetary payment”.
Acme
responded by firing their five hundred patrol personnel and putting their tow trucks
up for sale. In Gotham, buses ceased to run on schedule, ambulances again had
difficulty getting the sick to hospitals in a timely manner and fire trucks are
again accustomed to arriving at the site of a blaze after the building is only
a pile of smoldering rubble.
Those of you that are involved with patent matters will see obvious parallels between NPEPs and NPEs (or Trolls and
Trols if you must). Hopefully this story
will prove useful in explaining to those less familiar with patent matters the
inherent dangers of many popular trends.Tell your children.