The term “patent troll” conjures up all kinds of images and ideas, but what is a patent troll? Unfortunately, there is really no universally accepted definition of what a patent troll is, which has lead myself and others to recognize that, by and large, if you are being sued for patent infringement, it is your belief that you are being sued by a patent troll. Sadly, who is and who is not a patent troll is largely in the eye of the beholder.
Still, we are not without at least some recognized industry definition. For those who can look past the surface and do not feel that patent owners are evil simply because they own patents, the term “patent troll” is usually a term that is reserved for those who acquire patents from inventors or companies, perhaps through bankruptcy, auction or otherwise, and then turn around and sue giants of industry for patent infringement. In other words, patent trolls are those who simply acquire patents for the sole purpose of monetizing the patents through licensing regimes and ultimately litigation if a license cannot be obtained. These types of patent acquirers are typically well funded, they are not engaging in any commerce, so they do not fear a patent infringement counter-claim because they are not infringing (or, in fact, doing) anything.
But there is nothing inherently wrong about acquiring a patent and enforcing those rights. Those who find such acquisition for the sake of enforcement unpalatable claim that there is no benefit to the innovation ecosystem. Such an argument goes too far, though. Innovators and patent owners who sell the patent rights do obtain benefit from what they have created, and the patent system is set up to provide incentive to those innovators to do more innovating. So, while it might not be the way the system was envisioned to operate, it is not accurate to say that the acquisition of patents frustrates the purpose of the system. In fact, because patents are alienable, more benefit is transferred to the original innovator, which translates into greater incentive.
Of course, the industry is not without bad actors. While not all those who acquire patents for the sake of enforcement are bad actors, it is probably fair to say that the overwhelming majority of bad actors are those who acquire patents for the sake of enforcement. This has lead many, including myself, to look past the business model employed and instead focus on the patent litigation and enforcement tactics employed. Anyone who has objectively looked at the state of patent litigation has to agree that there is real abuse by some patent owners who file patent infringement lawsuits without as much as a hint that the defendant is infringing. Often this type of patent owner is merely looking to obtain settlement for less than nuisance value, knowing that it costs many tens of thousands of dollars to even begin to initiate a patent infringement defense. It is this type of bad actor who relies on judicial inefficiencies and fear. They seek to enforce specious patents that many times are almost certainly not infringed. These actors are the ones who deserve to be called patent trolls.
This later category of patent troll is starting to turn their focus in an ever-increasing manner on small businesses. Small businesses are typically easy targets because many do not have the funding, or desire, to engage in a litigation. They see the offer of a patent license as too attractive to pass up despite the fact that they are not infringing, or that the patent being asserted is likely (or almost certainly) full of invalid claims for which there is much prior art. These bad actors prey on small businesses, banking on the fact that they will pay rather than fight.
There are ways to combat patent trolls. You don’t need to be a target. I recommend those being sued or targeted by a patent troll read: What To Do If You Are Sued for Patent Infringement, The PTAB Roadblock to Patent Monetization, Inter Partes Review: Overview and Statistics, PTAB Death Squads: Are all Patents Invalid?, and Extortion Patent Style. As you will see, the Patent Trial and Appeals Board (PTAB) is striking down patents at an alarming rate. If you are going to fight as a patent defendant, you really should consider filing a petition for inter partes review.
Tags: patent, patent troll, patent trolls, patents
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