Patent troll

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Patent troll is a pejorative term used for a person or company that enforces its patents against one or more alleged infringers in a manner considered unduly aggressive or opportunistic.

Definition and etymology

"Patent troll" is a controversial neologism, susceptible to multiple definitions. Among them is a party that:

"Purchases a patent, often from a bankrupt firm, and then sues another company by claiming that one of its products infringes on the purchased patent;".
Enforces patents against purported infringers without itself intending to manufacture the patented product or supply the patented service;
Enforces patents but has no manufacturing or research base; or
Focuses its efforts solely on enforcing patent rights.

The term was used as early as 1993 to describe companies that file aggressive patent lawsuits. The Patent Troll was depicted and originally popularized in "The Patents Video" which was released in 1994 and sold to hundreds of corporations, universities and governmental entities. In "The Patents Video," an unsuspecting victim is surprised by the Patent Troll who strategically positioned himself to collect patent licensing revenue. ; Years later, it was again popularized in 2001 by Peter Detkin, former assistant general counsel of Intel, who applied it to entities that purchase patents at low prices from inventors, rather than inventing or actively developing a technology themselves, then broadly assert the patents across an industry to encourage settlements. Patent trolls may buy patents cheaply from entities not actively seeking to enforce them. For example, a company may purchase hundreds of patents from a technology company forced by bankruptcy to auction its patents. By another account, patent trolls stake out technologies they have not yet developed then wait for independent inventors to create and market the products, suing only after the newcomers are locked into the technology. This practice is criticized as rent seeking behavior.

At core, the criticism of patent trolls is that "they are in a position to negotiate licensing fees that are grossly out of alignment with their contribution to the alleged infringer’s product or service", not their non-practising status or the possible weakness of their patent claims. The risk of paying high prices for after-the-fact licensing of patents they were not aware of, and the costs for extra vigilance for competing patents that might have issued, in turn increases the costs and risks of manufacturing.

Mechanics of patent trolling

Patent trolls operate much like any other company that is protecting and aggressively exploiting a patent portfolio. However, their focus is on obtaining additional money from existing uses, not from seeking out new applications for the technology. They monitor the market for possibly infringing technologies by watching popular products, news coverage and analysis. They also review published patent applications for signs that another company is developing infringing technology, possibly unaware of their own patents. They then develop a plan for how to proceed. They may start by suing a particularly vulnerable company that has much to lose, or little money to defend itself, hoping that an early victory or settlement will establish a precedent to encourage other peer companies to acquiesce to licenses. Alternately they may attack an entire industry at once, hoping to overwhelm it.

An individual case often begins with a perfunctory infringement complaint, or even a mere threat of suit, which is often enough to encourage settlement for the nuisance or "threat value" of the suit by purchasing a license to the patent. In the United States, suits are often brought in United States District Court for the Eastern District of Texas, known for favoring plaintiffs and for expertise in patent suits. The cost of defending such a suit as of 2004 is typically $1 million or more before trial, and $2.5 million for a complete defense, even if successful.. Because the costs and risks are high, defendants may settle even non-meritorious suits they consider frivolous for several hundred thousand dollars.

The uncertainty and unpredictability of the outcome of jury trials also encourages settlement.. If it wins, the plaintiff is entitled as damages an award of at least a "reasonable" royalty determined according to the norms of the field of the patented invention.

Patent trolls are at a disadvantage in at least two ways. First, patent owners who make and sell their invention are entitled to awards of lost profits. However, patent trolls, being non-manufacturers, typically do not qualify. Further, owners are entitled to injunctions barring further manufacture, use, or sale of technologies that infringe their patents. However, in eBay Inc. v. MercExchange, L.L.C., a case over Ebay's "buy it now" feature, the Supreme Court recently limited the availability of injunctive relief for smaller patent-holders.

Defenses by manufacturers

Some believe patent trolls have an unfair advantage over manufacturers since they are relatively immune to the typical defensive tactic large entities use against small patent plaintiffs. Among the common techniques rendered ineffective is going on the offensive with counterclaims that accuse the patent plaintiff of infringing patents owned by the defendant. In normal circumstances the mutual threat often leads the parties to arrive at a mutually beneficial cross-licensing arrangement. However, this does not work on patent trolls who, without manufacturing or technology of their own, are unlikely to be infringers themselves. Another common defense, a "scorched earth" defense designed to drive up litigation costs, is equally ineffective because patent trolls plan for and have the finances to fully litigate a case. In fact, some are able to draw on hedge funds and institutional investors to finance their patent cases..

Substantial companies that attempt over-reaching patent litigation are subject to losing their patent rights to a defensive claim of patent misuse. However, defendants find it difficult to charge patent trolls with misuse because the antitrust violations typically involved require significant market power on the part of the patent holder. Nevertheless, manufacturers do use various tactics to limit their exposure to patent trolls. Most have broader uses as well for defending their technologies against competitors. These include:

Design arounds can be a defense against patent trolls. The amount of license fee that a patent troll can demand is limited by the alternative of the cost of designing around the troll's patent(s).
Patent watch. Companies routinely monitor new patents and patent applications, most of which are published, to determine if any are relevant to their business activities.

Clearance search. A standard practice is to perform a clearance search for patents or pending patent applications that cover important features of a potential product, before its initial development or commercial introduction. For example, a search by Thomas Edison uncovered a prior patent by two Canadian inventors, Henry Woodward and Mathew Evans for carbon filament in a non-oxidizing environment, the type of light bulb Edison wanted to develop. Edison bought the patent for for US$5,000 ($100,000 in 2006 US currency) to eliminate the possibility of a later challenge by Woodward and Evans.
Opposition proceeding. In Europe, third parties may conduct a proceeding to oppose overly broad patents. There is a more limited process in the United States, known as a reexamination. As an example, Research In Motion, filed reexaminations against broad NTP, Inc. patents related to BlackBerry technology.
Litigation. Whereas some companies acquiesce to a troll's demands, others go on the offensive by challenging the patents themselves, for example by finding prior art that invalidates their patentability. They may also broadly challenge whether the technology in question is infringing, or attempt to show patent misuse. If successful, such a defense not only wins the case at hand but destroys the patent troll's underlying ability to sue. Knowing this, the patent troll may back down or lessen its demands.
Early settlement. An early settlement is often far less expensive than litigation costs and later settlement values.
Patent infringement insurance. Insurance is available to help protect companies from inadvertently infringing a third party's patents.

Criticism of term

Vagueness. The term "patent troll" is criticized as vague and its use as subjective.
Overbreadth. Defining trolls broadly as patent holders that do not practice or promote the patented invention would include holding companies, most US universities and many individual inventors, for example, Thomas Edison, in the definition. Large businesses typically have separate licensing departments, and may have separate patent holding companies, that are distinct from their research and development operations.
Misapplied. Accusations of trolling may be conflated with broader criticisms of the patent office, or of patent rights in general, by those who claim the patent system is "broken", when in fact problems like poor quality patents, and patent thickets, are issues distinct from patent trolling. Critics of the term argue that it is misguided to use it to criticize the patent system, because there are already mechanisms in place to restrain troll-like behavior. The two primary factors are the limited patent term and the obligation to disclose.
Political agenda. The term is used in a partisan matter by companies seeking to gain benefit at trial or by public relations by accusing competitors of being trolls, and also those objecting to or wanting to change the current patent laws on equitable groundsFormer Microsoft Chief Technology Officer Nathan Myhrvold alleged that use of the expression "patent troll" is primarily a public relations tactic that large corporations use to intimidate individual inventors in an effort to tilt the playing field in their favor. Parties that themselves actively enforce and license patents they do not practice, may criticize other companies for trolling when it suits their interest to do so.
Legality of conduct. Private ownership of property generally, and intellectual property in particular, is a fundamental right that cannot be overturned in the United States without raising equal protection concerns under the Constitution.. Under US law patent owners need not commercialize the invention to enforce their patents. They may charge any amount they wish as a royalty to others in exchange for a right to make, use or sell the patented invention, or to not use or license the patent at all (UK and European patent law, by contrast, contains provisions for compulsory licenses, something that ameliorates patent trolling). Moreover, the owner of a patent need not be the inventor. Patents are legally transferrable in the sense that they can be bought, sold and licensed to entities other than the inventor(s).
Beneficial effects. Some claim that patent trolls benefit the patent system and the economy, suggesting the more neutral term "patent dealer", or simply calling them what they are, for example a licensor, patent pool or a patent holding company. Patent licensing is considered procompetitive because it encourages investment in bringing new products to market. By creating a secondary market for patents, patent trolls make the ownership of patents more liquid, thereby creating incentives to innovate and patent.. Aggregating patents in the hands of specialized licensing companies facilitates access to technology by more efficiently organizing ownership of patent rights.

References

Other sources

Maggie Shiels, Technology industry hits out at "patent trolls", BBC News, June 2 2004,
Lorraine Woellert, A Patent War Is Breaking Out On The Hill, Business Week, July, 2005,
Joe Beyers, Rise of the patent trolls, CNET News.com, October 12 2005
Raymond P. Niro, The Patent Troll Myth, Professional Inventors Alliance web site, August 4 2005
Raymond P. Niro, Who is Really Undermining the Patent System – “Patent Trolls” or Congress?, 6 J. Marshall Rev. Intell. Prop. L. 185 (2007).
Jennifer Kahaulelio Gregory, "The Troll Next Door", 6 J. Marshall Rev. Intell. Prop. L. 292 (2007).
Simon Phipps, On Cane Toads, Fire Ants and Patents, SunMink, February 13 2005,
Bakos, Tom, "Patent Trolls", Insurance IP Bulletin, Vol. 2005.3, June 2005
Ferrill, Elizabeth, "Patent Investment Trusts: Let's Build a PIT to Catch the Patent Trolls", N.C. J. of Law & Tech., Vol 6, Iss. 2: Spring 2005.
Kurt Leyendecker, "Patent Trolls!", Control, Protect & Leverage, A Leyendecker & Lemire Blog, March 14 2006.
Steven Rubin "Hooray for the Patent Troll!". IEEE Spectrum, .