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In Search Of a Definition for the term “Patent Troll”


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
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Posted: July 18, 2010 @ 11:46 pm
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Over the last several weeks “patent trolls” have been back in the news. The mother of all patent trolls, NTP, which won over $600 million from Research in Motion as the result of a successful patent infringement litigation over the popular BlackBerry phone, is back at it again. NTP is now suing Apple, Google, Microsoft and others alleging that smart phone e-mail systems infringe its patents. See, for example Bad News for Tech Heavies? and NTP sues Apple, Google, Microsoft and others.

Not long ago Attorney John M. Desmarais, who was one of the attorneys who represented GlaxoSmithKline in their effort to stop the claims and continuations rules from becoming effective, left the practice of law. He acquired 4,500 patents and is going to throw his hat into the ring, presumably representing himself, going after those large companies that he believes are infringing his patents.  See Billion Dollar Lawyer Desmarais Quits Firm to Troll for Patents.

Just this past week, Kelley Drye & Warren, the firm that represented Dr. Tafas in the claims and continuations challenge, filed an $11.4 billion lawsuit on behalf of XPRT Ventures, LLC. Many in the popular press and in the blogging community are, like lemmings heading off a cliff, referring to XPRT as a patent troll. But what evidence do that have of that? As far as I can tell little or none; mostly none.  See eBay’s PayPal Sued for $11.4 Billion for Patent Infringement.

As you can see, the term “patent troll” is thrown about constantly as a quick way to refer to individuals and companies that have little or nothing in common. Many large corporations have started referring not to “patent trolls,” but rather to non-practicing entities, which allows them to group together Universities, federal research laboratories and start-up companies and research and development companies. As with individual inventors, none of these folks actually “practice” their inventions, and if you use a sterilized term such as “non-practicing entity” it isn’t as shocking as the term “patent troll,” and apparently seems useful to forward their anti-patent, anti-innovation agenda. I suspect this is the case because no one would ever consider a University or R&D company to be a patent troll, so you have to change the linguistics in order to wrap them all together in the same pot.

The reality is that the term patent troll seems to be more in the eye of the beholder than anything else. So a patent troll is whoever is suing you because you must be correct and some evil wrong-doer is holding you hostage. Never mind that you are actually infringing and you are the real wrong-doer (i.e., tortfeasor). So the term “patent troll” is much like the term “communist” during the McCarthy era. Once you are labeled a patent troll reality no longer matters, just as those who were labeled communists found out. Of course, some of those who were labeled communists by Senator McCarthy were, in fact, communists. But there were some who were labeled communists that were not, having only been caught up in the frenzy and ruined as a result thereof.

Patent trolls are not vilified in society quite the same way as alleged communists were, and the FBI and CIA are not, at least as far as we know, being deployed to investigate patent trolls. But it is also certainly true that some who are vilified as patent trolls are, in fact, the type of bad actors that should be appropriately vilified, but many, perhaps even most who are labeled patent trolls are not at all bad actors at all.

What is needed is a working definition for the term patent troll so that this nonsense can stop once and for all, and so the uninformed in the media can be spared the embarrassment of their own cluelessness. So lets take a look at some of the characteristics that will get you characterized as a patent troll and either confirm it as a useful indicator of a wrong-doer or as simply overblown and wholly inaccurate.

1. You a patent troll if you sue a big tech company

FALSE. While those giants of Silicon Valley will be upset to hear me say it, the reality is that just because you sue them does not mean you are a patent troll. As it turns out these tech giants actually infringe patents with at least some level of frequency. When they do infringe, have been found to infringe and lose the litigation it is intellectually dishonest to act as if the party enforcing a valid right, and which as proven infringement, is the bad actor. Infringers are the bad actor if there is one. The law properly calls infringers tortfeasors because they have trampled on the valid rights of another.

2. You are a patent troll when you sue for an enormous amount of money

FALSE. The law entitles patent owners to recoup either lost profits or a reasonable royalty if they can demonstrate patent infringement. It is exceptionally difficult to prove lost profits, and for those that are truly non-practicing entities it is impossible to obtain lost profits. This is because in order to obtain lost profits you must be able to demonstrate that you had the capacity to satisfy the demand diverted by the infringer. So if you do not sell anything you cannot prove capacity and you would be limited to a reasonable royalty. So the complaining of those who vilify patent trolls can already be seen to be largely disingenuous.

The fact is, with so many units for various products in the marketplace even a reasonably royalty can lead to an exceptionally large amount of damages, particularly when the invention relates to a computerized process that can be implemented many millions of times, each leading to the payment of its own reasonable royalty. Additionally, factor in that a reasonable royalty during litigation is always higher than it would have been if negotiated prior to infringement and you can see this amount adds up quickly. But why shouldn’t a litigation royalty be higher? If it were not then why would anyone ever do anything other than infringe? They would pay only if they get sued and lose, which is unfair and would reward breaking the law (i.e., infringing) which is not something that is or should be encouraged.

3. You are a patent troll if you are a non practicing entity

FALSE. Throughout history there have been many individuals and entities that have done nothing more than invent and then license out the inventions they make. Thomas Edison was a non-practicing entity. Was he a patent troll? Of course not. Neither are universities and neither are independent inventors who innovate. Research and development is something to be encouraged, not vilified. Once and for all we should realize that if you innovated you should not be able to be considered or called a patent troll. The vilification of those who engage in the hard work of inventing is anathema to what the United States has always done and celebrated. We ought not let tech giants who simply cannot innovate and are relegated to infringing to call these pioneers infringers.

4. You are a patent troll if you acquire a patent and you did not innovate

PERHAPS. To the extent that there is any across the board definition of the term “patent troll” this is the characteristic that seems to be shared with most who would be considered by the majority to be patent trolls. There is something that rubs people the wrong way when individuals or entities buy up patent rights from a desperate inventor or a bankrupt company, and then turns around and sues big tech giants.

I suspect we don’t like it when this happens because the innovator is not the one who is being rewarded, but rather the entity with the deep pockets who can wrestle the patent away and then back it with a large litigation war-chest reaps the rewards. Still, while this may not be the most appealing line of business to be in it is hard to justify the underlying infringement that needs to accompany a big award paid to an entity that scoops up an unwanted patent. So in this scenario neither party is snow white, or even snow off-white. The defendant who loses was infringing a valid patent right and the plaintiff who wins gets rich not as a result of their own innovation but as a result of having bought a patent that the inventor couldn’t actually monetize. In short, they didn’t have the money to put up a fight to win lottery like winnings.

Of course, many who do acquire patents do so in order to supplement their own patent portfolio, so the mere fact that you acquire a patent and then sue on an acquired patent cannot make you a patent troll. However, one thing that most who are called patent trolls have in common is that they are not innovators and they have acquired a patent for the sole purpose of licensing and enforcing the patent through litigation.

Luckily for independent inventors and small and mid-size businesses, it is getting easier and easier to obtain contingency representation when there is large scale ongoing infringement. One of the sponsors of IPWatchdog.com, Tara Williams, who is also known as the IP Contingency Lawyer, is an example of a patent litigator who takes patent infringement cases on a contingency basis, which means that you do not have to pay the hourly fee for legal services provided. This market reality can and should help some who have valid and infringed patents actually mount a litigation to be rewarded for the infringement of their own innovations, but there will always be reasons why some patents wind up in the hands of those who seek to only license or litigate in search of massive payouts.

I am not really sure what can be done to stop those who are the patent trolls that make so many uncomfortable. Anything done to make it harder for bad acting patent owners to sue would also apply to the rights of those who are not bad actors, which certainly would not be bad for the big tech companies, but would be objectively terrible for innovation at large. You simply cannot alter the rights granted in an issued patent without negatively impacting the inherent value of a patent. If the inherent value of a patent is impacted then investors will react accordingly and funding innovation will become more and more difficult, which would lead to less innovation, fewer jobs and a slowing down of an already sluggish economy.

So until there is an epiphany with respect to how to deal with those who are viewed as the bad actors, or until the large tech giants actually develop a strategy for combating patent trolls that would work (see Patent Trolls: A Conspiratorial Story of Symbiosis) the best we can do is to accurately characterize those who are suing for patent infringement. While NTP is considered by many to be the prototypical patent troll, the inventors who had a confidentiality agreement with eBay only to find eBay taking the innovation without paying for it and trying to patent it themselves are clearly not the bad actors. So that being the case, why don’t we reserve the term “patent troll” for the party who is the wrong doer and actually acknowledge what we all know is true. Those who infringe are tortfeasors and when they make a conscious or reckless decision to infringe are every part the patent troll they rail against with such vigor.

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Posted in: Gene Quinn, IP News, IPWatchdog.com Articles, Patent Litigation, Patent Troll Basics, Patent Trolls, Patents

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

 


62 comments
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  1. On the subject of nomenclature, you may find the following paper of interest:

    Colleen Chien, Of Trolls, Davids, Goliaths, and Kings: Narratives and Evidence in the Litigation of High-Tech Patents, 87 N.C. L. Rev. 1571 (2009).

    (I’ve only read the working draft available on SSRN – http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1396319# – not sure whether it differs much from the final version, which I have not sighted.)

    Chien breaks down the different narratives used to characterise the participants in high-tech patent litigation, in an effort to illuminate the pejorative “patent troll”.

    In answer to the question “who brings high-tech patent suits?” Chien argues (p129) that “by and large, non-NPE corporations do. 76% of all suits were brought by a public or private corporation, and among industries, the range was 71–84%. Individuals initiated 5% of suits and nonprofits 1%.151 That left the NPE
    share at 17%, including 8% of all hardware suits and 23% of all financial suits.”

    Chien removes from the NPE category some of the more obvious “non-trolls”, such as Universities and Research Institutions, as well as individual inventors. No doubt what is left still includes a mix of the good, the bad and the ugly, but the statistics are interesting, and it is a more nuanced analysis that you might find elsewhere.

  2. I’d say one of the easiest things to do would be to raise the standards for innovation. Many would agree that a lot of the worst patent troll cases involve what is basically the bottom 10% (or somewhere in that general neighborhood) in terms of patent quality and innovation, and these patents are the least valuable to society, so the innovation lost would be the smallest. Since this quality is subjective, it would seem the policy would break down to the PTO just being a bit more strict on what makes the cut, although this is tough to legislate or put into an explicit policy.

  3. I’d say a patent troll is an entity that sues based on a patent that is questionably valid or based on some broad interpretation of the claims such that the claims are not valid if they had been interpreted in the same manner by the Examiner during prosecution of the patent. Take Ray Niro, for example, who threatened people for hosting images on web pages. As you say, simply being an NPE does not determine whether an entity is a patent troll, though by my definition, many NPEs are patent trolls.

  4. I don’t understand why it matters who owns the patent. A valid patent is a valid patent. A patent is personal property that can be assigned. A non-practicing, non-inventing entity should not be condemned for buying a patent and then enforcing it. If you want to criticize an entity enforcing a patent, criticize it for specific wrongful actions such as bringing meritless suits to extort settlements. If the infringement suit has merit, I see no reason why the characteristics of the plaintiff should matter.

    And enforcement of a patents by subsequent owners, even if they are non-practicing, non-inventing entities, can only help to preserve the value of patents in general.

  5. Here’s a definition we hammered out (and continue to hammer out) on Wikipedia:

    “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, often with no intention to manufacture or market the patented invention.”

    http://en.wikipedia.org/wiki/Patent_troll

  6. I’d say one of the easiest things to do would be to raise the standards for innovation. Many would agree that a lot of the worst patent troll cases involve what is basically the bottom 10% (or somewhere in that general neighborhood) in terms of patent quality and innovation

    Bobby, Your “many would agree is a myth that has been disproved.

    See: http://271patent.blogspot.com/2010/01/one-reason-why-improving-patent-quality.html

  7. There is something that rubs people the wrong way when individuals or entities buy up patent rights from a desperate inventor or a bankrupt company, and then turns around and sues big tech giants.

    I suspect we don’t like it when this happens because the innovator is not the one who is being rewarded, but rather the entity with the deep pockets who can wrestle the patent away and then back it with a large litigation war-chest reaps the rewards.

    Is this even a bad thing? The innovator was rewarded, because he invented something and sold the rights to it. He’s entitled to take a lump sum up front instead of a risky future profit stream that requires even more hard work to realize, while distracting him from inventing something else.

    What about large companies that buy other companies to sell their products? They’re earning money on ideas they didn’t invent. What about regular working-class people and pension funds that make money by owning shares in some random company they didn’t contribute to in any way?

    Our economy rewards everybody who is needed to make an idea profitable – the innovator who creates the idea, the businessman with the savvy to market it, the engineer who figures out how to build it in quantity, the investor who provides the necessary capital, and even the lawyers needed to assert the legal rights that keep the whole system going. If there’s no profit for one of them, we lose his link in the chain and the idea doesn’t benefit anybody. If we’re upset that one of them is making too much, either we don’t see the risk they have to assume in exchange for their profit, or someone else along the line needs to charge more. But that’s something the economy can work out for itself, and there’s no real need to vilify anyone in particular unless, as Rick says in post 2, that individual is doing something specific and wrongful. We need to reform society’s attitude about patents, and I’m glad the people who were bandying about the term “patent troll” have finally begun to realize it doesn’t apply to all of the people they’re afraid of.

    From an operating company’s point of view, I think “non-practicing entity” better embodies the threat they perceive anyway. They’re afraid of being sued by someone other than a market competitor, so they actually have to pay to use the patent because the patentee has no interest in a cross-license. The decision in eBay notwithstanding, I think this is a positive development. It’s helping patents become profitable again, instead of just an arms race where big market participants throw money down a hole and collude to mutually ignore each other’s rights.

  8. @Gene

    On patents in general, could someone knowing how to do patent searches find where these as well the many other independently obtained patents may overlap ? By overlap I mean, by claims that are claiming the same things. Seems to me they could, as I believe does happen because of the work load of the PTO. I would have to believe it would be near Impossible to track claim to claim, by patent to patent — If any such system exist in any form that could do it with predictability of the outcome.

    Part of patent quality would be preventing this *overlapping*; if such a common thread today were found running through many patents, (the overlapping claims); and if a common thread was as of post Bilski found unpatentable , could unwind what is now a loose fit patent system.

    The PTO needs now more then any other time, to prevent the system from going before the SCOTUS. Yes the system, another case over a bad patent would put the patent system in question — not just a patent again. Such a return because things regarding patents and patent quality were not addressed to solve the litigation, that many larger business, has come out against over, litigation as what is wrong with the patent system today with the patents granted. The United States patent system doesn’t need a black-eye ! and I see the PTO will not allow it to happen.

    I feel the the PTO would open itself to questions, those same questions now turned into action:
    http://www.zdnet.co.uk/news/intellectual-property/2010/07/15/new-zealand-law-to-render-software-unpatentable-40089551/

  9. There is another flavor of troll out there that is a large company who attacks every independent inventor that enters “THEIR” market. As one of their victims, I was looking forward to invalidate a few of their claims based on “useful” as it made no sense to me for a company who owed a patent to sue others for infringement of a claim that they were not practicing which in my mind, is the opposite of “useful”. I had a very savy judge so I had a better than average chance of winning that point, but the trolls folded their tent when they lost the motion for injunction. Maybe next time…

  10. The T-word is a pejorative like the N-word

    … and is meant to have the same effect.

    There is no intellect in using the T-word.
    It is pure raw emotion that is intended to shut down the thinking cap part of the brain.

    Those who use the T-word are no better than those who use the N-word to inflame the hate centers of the brain and to shut down all reasoning. T-word users actually have nothing rational to say which is why they blow their hot air onto the flames of hate and mistrust.

    Almost all “inventors” are NPEs.
    At a large corporation, the inventor often does not actually make and practice the invention. Instead he/she passes his/her high level design over to the detail people who then pass on to the more detail people and so on. Most large corps. outsource their manufacturing. So they are “practicing entities” like I am chief operator of the internet. It’s all pure, hate filled BS.

  11. At a large corporation, the inventor often does not actually make and practice the invention. Instead he/she passes his/her high level design over to the detail people who then pass on to the more detail people and so on. Most large corps. outsource their manufacturing.

    All of those things are legitimate practicing of the invention. The inventor invents on behalf of the corporation, the manufacturer manufactures on behalf of the corporation, and the corporation pays for it all and controls the entire process. As long as the corporation is causing ideas to be invented and product to hit the shelves, why should we care if it owns the factory?

    What’s more interesting for this discussion is that most large corporations don’t do anything at all with most of their patents. The technology never makes its way into any of their products, and the patents are not actively enforced against infringers. The patents sit silently like a mutually-assured-destruction trap so that the company doesn’t get sued by its competitors, awaiting the moment of maximum leverage. Sounds pretty trollish, if you ask me.

  12. Another part of this BigCompany, independent inventor, patent troll scenario is the new idea submission treatment. Independent inventor approached Big Company about commercializing the inventor’s idea (whether he has filed a patent application or not) and gets a stiff-arm from the BigCompany. )Recently there has been some press about this with BP’s disregard of some 300,000 ideas submitted from around the world. Yes, a hell of a lot of the ideas were stinkers, but there must have been a gem or two in there that simply got disregarded.)

    So, with that is the little guy to do when he has an idea he thinks has commercial value? He tries to be an entrepreneur (see today’s discussion on Patently-O). If his company fails but the patent survives, it becomes the weapon of a “patent troll,” according to the big boys whose callousness made his independent endeavor necessary in the first place.

  13. The word should not even make any difference, as long as it is not used in front of a jury. Much ado about nothing.
    But if you want a clear and narrow definition, how about:
    “An entity {typically primarily owned and controlled by lawyers} that has no other business than litigation of acquired patents against actual products of others with acquired patents.”

  14. @PF Morgan (comment 13)

    But it does have another business:

    Paying the inventor market rate compensation for the value of his patent; which if the big guys who turned the inventor down had done in the first place, they might have paid less than what they ultimately do pay to the next party who, in accordance with fair business practice, buys the assets (IP) of another at a low price and then disposes of it at a higher price which is called “turning a profit” and which is what the big boys are all in favor of. So WTF are they complaining about other than that they are a bunch of hypocrites (profit is only good for me but not for the next guy)?

  15. Is there actual economic data to show that small inventors are actually getting significantly more for their patents since trolling became a major business?

    P.S. Purported statistics on the % of patent litigation that is by NPE’s these days are often highly misleading, because so many of them are combination suits against dozens of major companies at a time. The only accurate statistics are those that count the total number of defendants being sued and the numbers of patents being sued on, not just the raw number of complaints filed. And the economic effect of such suits is vastly greater than that of small niche companies suing each other.

  16. @step back
    that’s assuming that they saw the inventor’s idea, copied it and rejected licensing it, and it was actually a valid claim (and being held up in a Texas court known for siding with patent holders does not a valid claim make). There are certainly many cases that don’t fit this pattern, and the cases that do fit that pattern don’t make the cases that don’t not problematic, although they may make finding solutions tougher.

  17. Purported statistics on the % of patent litigation that is by NPE’s these days are often highly misleading,

    … because we can’t even agree on who is or is not an NPE.

    If Microsoft buys a patent that it does not itself infringe, and starts suing people for infringement of that patent, would you count that as an NPE suit?

    What about a university that doesn’t sell anything, but has developed the patented technology in conjunction with a private company that is practicing the patent under a royalty-paying license?

    Sigh. This is hard. Let’s forget about name-calling for the moment, and try to identify what real problem we’re trying to solve. If a patentee wants to offend our delicate sensibilities, what must it do or refrain from doing with its patent? Bearing in mind that we should not expect any patentee to tolerate infringement, why is that conduct considered a problem?

  18. 1. Yea; what IANAE says.

    2. “Patent troll” seems much akin to “pornography.”

    We all know it when we see one/it; but can’t agree on how to define one/it.

  19. Part of patent quality would be preventing this *overlapping*; if such a common thread today were found running through many patents, (the overlapping claims); and if a common thread was as of post Bilski found unpatentable , could unwind what is now a loose fit patent system.P.S. Purported statistics on the % of patent litigation that is by NPE’s these days are often highly misleading, because so many of them are combination suits against dozens of major companies at a time. The only accurate statistics are those that count the total number of defendants being sued and the numbers of patents being sued on, not just the raw number of complaints filed. And the economic effect of such suits is vastly greater than that of small niche companies suing each other.

  20. Great blog item Gene.

    It highlights the key issue for me which is the vested interest of LPEs (Large Practicing Entities) in shutting down the generic NPE IP area. This industry (LPEs and their partners Patent Freedom and other like them) seek to muddy the waters between the practices of real Patent Trolls and every other NPE. They do not like to have competitors in the market that cannot be dealt with on their terms. With the emergence of a strong NPE market we are getting to a point where IP will matter again and people will pay more attention to quality as opposed to the crazy MAD patent strategy of LPEs. Most of the junk patents are generated by LPEs not NPEs. These self same LPEs will happily sell their IP to a Patent Troll through their membership exchanges when their interests are secured so that the Patent Trolls can assert against SMEs or non-club members. This is market distorting behaviour and should be resisted strongly.

    @Rick . Could not agree more.

    @ Mark Nowotarski. The Wikipedia definition is not helpful. It’s too subjective and can embrace NPEs that are not Patent Trolls. It is also not a neutral definition. A key factor is that Patent Trolls often have no intention to licence (the practicing bit of the definition is a red herring which suits the LPEs); they only seek litigation settlements or awards of damages. See Barry’s comment about lack of injunction. One persons Patent Troll is another persons Knight in Shining Armour.

    @ IANAE. Could not agree more.

    @ Barry Farris. Developing on Barry’s comment. LPEs use patent positions to dominate markets and stifle innovation from SMEs. The developing NPE market coupled with Open Innovation models is a threat to their dominance. I think these are what we can call Patent Bullies.

    This dominance by LPEs is the main problem not the problem of LPEs having to settle for infringing VALID (in the main) patents, whoever owns them.

    In the knowledge/innovation age we in the West have to be very careful to ensure that we give primacy to idea creation and protection as opposed to the exploitation or practicing of these ideas. The attack on NPEs is part of this friction.

  21. “In the knowledge/innovation age we in the West have to be very careful to ensure that we give primacy to idea creation and protection as opposed to the exploitation or practicing of these ideas. The attack on NPEs is part of this friction.”

    Amen to that. Innovation is about all we have left as a competitive advantage, if we give that away by making patents too puny, we’ll be serfs to the Chinese people.

  22. Read the article in the penultimate issue of “Business Week” by Andy Groves, the founder of Intel. Mere U.S. ideas will not save the U.S. economy and decent jobs if all of the manufacturing and increasingly most of the R&D for those ideas continues to go overseas. He provides specifics.
    ——————-
    Furthermore, more than half of the patents now issuing in the U.S. are to foriegn inventors and/or foriegn owners.
    —————–
    Troll suits by troll “companies” are predominantly generating handfulls of very rich lawyers, and no one can honestly confuse that with NPE suits by universities or other license-spurned inventors suing in their own interests on their own inventions.
    ——————————
    The real problem has nothing to do with names, parties or definitions. The real problem is that contingent fee patent litigation has become so highly cost-advantagious to trolls that they can make fortunes just on large pre-trial settlements from most defendants, who are unwilling to assume the cost-burdens of millions of dollars to fight the patents, plus heavy discovery burdens that trolls do not have, even when the defendants have good reasons to think the patents would ultimately be held invalid and/or non-infringed.

  23. Paul, I agree that manufacturing within the USA is a great jobs and wealth builder. Unfortunately, our manufacturing competitiveness is MUCH weaker than it was a few decades ago. One way to sustain manufacturing here is to have patents that protect its otherwise uncompetitive situation.

    US Patents can also be a source of local revenue for goods made of overseas, if a royalty can be collected upon importation or sale.

    “The real problem is that contingent fee patent litigation has become so highly cost-advantagious to trolls that they can make fortunes just on large pre-trial settlements from most defendants” This has always been true, so why is it a problem only now?

  24. One way to sustain manufacturing here is to have patents that protect its otherwise uncompetitive situation.

    If you’re going to use US patents as import tariffs, why not simply impose an import tariff across the board? You’d protect more American businesses because you wouldn’t be limited to patent-infringing technologies, and border control measures would be simpler because you could tax everything instead of hoping customs officials somehow learn how to read patents.

    Also, if you’ve so much as watched the classroom scene in Ferris Bueller’s Day Off, you should know import tariffs and their ilk are not the answer in a recession economy.

    Those manufacturing jobs aren’t coming back. Ever. Sorry you had to find out this way.

  25. Paul Morgan,

    As is true with many other folk, you confuse the gun with he who pulls the trigger and what morals control the actions of the trigger puller.

    Patent law is a gun.
    Those who abuse it are amoral trigger pullers.

    But to use the pejorative T-word on all who pull the trigger is amoral in itself.
    Just because someone doesn’t have the where with all to manufacture doesn’t make him/her an unscrupulous inventor.

    Even if company A makes the gizmo (and tries to succeed in the market place), the big boy company B can still claim, we invented it independently and we never heard of company A or their patent so A’s patent should be unenforceable as against us big boys.

  26. [The above missrepresents that I said that, and suggests a serious missunderstanding of how very difficult it is for anyone to prove they invented something themselves before someone else filed a patent application claiming it first.]
    ———————————-
    Re: “The real problem is that contingent fee patent litigation has become so highly cost-advantageous to trolls that they can make fortunes just on large pre-trial settlements from most defendants” This has always been true, so why is it a problem only now?”
    That is an excellent question, worthy of another whole blog. Here are some reasons I can think of, and there may well be others:
    For one thing, effective tort reform legislation in states like Texas has forced many contingent fee general tort litigators to look for other lucrative litigation sources. That plus increasing experiences of non-patent-attorneys in taking patent litigation away from patent attorneys in traditional patent litigation firms [many of which are now wiped out] has greatly added to the number of trial lawyers now willing to take patent litigation on a contingent fee basis. Especially since they have noted that at least 97% settle before trial. Plus, almost all of the burdens of proof and evidence are heavily on only the defendants. Thus, they usually don’t even have to know about or even argue any patent law technicalities in most cases in order to collect real money from most defendants. They can go almost right up to trial without doing much of anything other than coming up with some kind of infringement argument for at least one claim as to one product. Effective sanctions granted against unfounded patent litigation are almost non-existent. Plus, almost all patent cases are now tried before juries, and juries tend to be very impressed with patents, with their government gold seal a ribbon, irrespective of the reality that almost all patents are issued by a single young non-attorney examiner with only a few hours of prior art searching and examination. Furthermore, the trolls have found that someone who merely buys patents after they are issued has minimal discovery burdens as compared to defendants with actual products.
    Furthermore, a fairly large number of the patents that are now asserted by trolls are business-method related. Many such patents have broad claims without specific or specialized hardware or software claim limitations, broadly functional even at the point of novelty. Thus, easily arguable for infringement. A potential 101 or 112 defense to such patents is highly unlikely to win without going all the costly way to a CAFC appeal, much less ever get S.J. pre-trial. Worse, courts like those of E.D. TX rarely consider any summary judgment motions before trial, thus eliminating any low-cost defense opportunities. Nor can these and many other legal defects in patents be raised by reexamination.
    An increasing number of attorneys have now realized these many advantages in starting a troll corporation solely to acquire and litigate patents. Observant attorneys and investors have seen how much money some troll companies have been making.

  27. Ianae, accepting your premise that “Those manufacturing jobs aren’t coming back. Ever. Sorry you had to find out this way.” and that patents are no substitute for tariffs, can I get you to conjecture what the future of the US economy will look like?

  28. Correct to note that Troll activity is peculiar to that dysfunctional ecosystem called the US legal and patent system. It’s the Wild West all over again. It’s a tad parochial and for the ROW it’s akin to watching a blood sport.

    Hello!! US corporations can file patents outside of the USA. The USA is not the only economy in the world and soon will not be the dominant economy. Note Apple’s mantra…….”Designed in California” (made outside of the USA). IP is global. Clever US players can impact global manufacturing and markets through clever IP practices. IP is the global trade moderating mechanism; who needs trade barriers when you have 20 year monopolies.

    What the future of the US economy will look like? Wrong question. What is the future for Americans in the global economy? Those Amercians who have nothing to contribute to the ideas economy.

  29. Not sure that it is entirely fair to “blame” the US legal/patent systems, although obviously they have their issues.

    There is a legitimate business model in the acquisition and monetization of patent portfolios by holding companies. Inventors benefit from this because a patent that has minimal value by itself in the hands of an individual, may have a much larger value as part of a portfolio of related properties in the hands of an entity with the resources to extract the value from that portfolio.

    I can only assume that the high-profile, so called “patent troll”, litigation that we see represents a small proportion of holding company activity, with a greater proportion of monetization coming from licensing income obtained without litigation. Not to downplay the role of threatened litigation, of course – particularly when jury awards can be so high – but business is surely better for the holding company if it can gain a certain income stream from licensing today, rather than an uncertain payoff years in the future following expensive litigation.

    As things presently stand, this business model makes the most sense in the US simply because of the size of the economy and market, regardless of any issues with the legal environment. Developing nations are still not sufficiently advanced – economically, socially, legally – to provide an adequate return on the necessary investment.

    While Europe is a single market in many respects, and has a central patent granting process, most European patents are only validated in a handful of countries, and patent enforcement must still be pursued in the individual national courts.

    The markets in other developed nations are just too small to be worth the effort. In calendar year 2009, for example, about 192,000 patents were issued in the US, compared with less than 14,000 in Australia. Running patent litigation in Australia is cheaper, in absolute terms, than in the US, but relative to the size of the market is much more expensive.

    So as far as I can see, the “patent holding/licensing” business model would make sense in the US, even if the patent system were suddenly “fixed” (or indeed replaced with the European law :-), whereas on any measure there are significantly diminishing returns on the investment in every other market.

    Other than the patent holding companies themselves, US inventors are the main beneficiaries. Inventors elsewhere in the world wanting access to this market for their inventions need to file in the US. I note that in 2009, half the US patents issued, and half the new applications filed, were to foreign entities. While this is a lot, historically speaking, it still means that US entities make the same use of the US patent system as the whole of the rest of the world combined! So it is still primarily a US game for US players.

  30. I never understood why IT workers vote against their own economic interest by being anti-patent.

    If there was no patent system, IT companies would wait for “the other guy” to invent it and then simply copy. They would have little need for hiring creative software types for their own company. All they need to do is hire some reverse engineering experts in India or China.

    Yes I know you are going to throw “advantage of first to market” BS at me. As if anyone is going to buy that bridge to nowhere. Tell me what a “first to market” small start up does when MS absorbs the new feature into its Borg collective. Resistance is futile.

  31. Mark,

    I’m not “blaming” the US legal system as such. It’s just that the legal framework alongside American corporate culture is a toxic mix. The stakes are higher than they probably should be on all sides. It’s not the market that is of primary importance. I know “Trolls” that will not venture outside of the US simply because the legal systems don’t make it an easy ride to the desired end result. It’s a no brainer to do this is in the US. Market size or should I say opportunity size is an issue but not the overriding issue. In any event forum shopping is at play. Settlements between the parties are usually not limited by jurisdiction and are global settlements.

    The anti-Patent Troll bandwagon lumping all NPEs under the same banner is in my view an attempt to attack what is a fundamentally a good position. Something that levels the playing field. The monetization of IP as such. Capitalists don’t like this because IP is basically not a capital intensive business. If we allow big corporate interests to dominate the debate and undermine the NPE market we will rue the day and may as well all pack-up.

    Step back,

    With no effective IP position capital ALWAYS wins. Software is not a capital intensive business. But in the software industry Microsoft has the FTM advantage and a massive one no BS. They used to be ambivalent about software patents but no longer, I wonder why?

  32. Step back,

    A little something between us two – (it’s the Kool Aid).

  33. There is a legitimate business model in the acquisition and monetization of patent portfolios by holding companies. Inventors benefit from this because a patent that has minimal value by itself in the hands of an individual, may have a much larger value as part of a portfolio of related properties in the hands of an entity with the resources to extract the value from that portfolio.

    That’s exactly what’s happening. Patents are designed to create value and profit in inventions, and “trolls” are the companies that are most efficiently set up to extract that value. It’s much the same dynamic as when a land developer aggregates a bunch of adjacent vacant lots from different owners and builds a profitable commercial building. Property will eventually make its way into the hands of the people best positioned to turn a profit from it, because they are willing to pay more to buy it than other owners can earn from it on their own.

    The real issue here is that while patent assertion is getting more efficient, defending oneself against even frivolous infringement suits is as expensive, inefficient, and impractical as ever. If it were reasonably affordable to mount a substantive defense to patent infringement in a case the defendant legitimately thought he could win, we’d have a much better balance. No wonder big companies are upset, but as usual they’ve launched personal attacks against their counterparties instead of trying to solve the underlying problem.

  34. @IANAE

    Exactly!

    One other nuance is that the big companies are upset because they want to play big company to big company IP games on their terms. They are happy to spend masses of money on litigation in that IP game when it means market share for them from direct competitors, but hate paying royalties to lone inventors whom they largely ignore.

    Let’s attack the real problem the US patent litigation system. Not legitimate patent owners (troll, NPE or LPE) who use the system to their advantage. A tightening up on patent quality would of course help. If the system was fixed then the LPEs would not have much to cry about when attacking NPE patent owners who try to enforce their legitimate rights.

  35. Step-

    “Yes I know you are going to throw “advantage of first to market” BS at me.”

    Wasn’t Wang first to market? See http://en.wikipedia.org/wiki/Wang_Laboratories

    Things didn’t turn out so well for them.

    -Gene

  36. I have been silenced at patently o. Otherwise I would have told Babel a thing or two.

  37. If you think outrageous troll shake-down schemes on invalid patents are only a problem for LARGE companies, see this latest reported alleged example at:
    http://thepriorart.typepad.com/

  38. And Gene if that was a setup, which I wouldn’t be surprised about, I want you to call me. Because if he set me up, he set you up. And I will be willing to get in your Boat, as long as YOU PADDLE..

  39. Gene,

    Wasn’t Netscape first to market?

    (Younger folk now thinking: Net… who?)

    Wasn’t CMP first to market? (Before MS DOS)

    Wasn’t Visicalc first to market? (Before MS Excel)

    Wow.

    Can you imagine that?
    In the special “software” arts, first to market ALWAYS always wins.
    And that is why the software arts don’t need no stinkin’ patents.

  40. In the software industry Microsoft has the FTM advantage and a massive one (no BS). They used to be ambivalent [if not anti-] about software patents but no longer, I wonder why?

    @Nick White

    ‘Twas the night before OS/2 release XMAS
    And all through the MS campus hardly an IP thought was stirring
    Not even about a mouse

    Then one happy morning IBM’s santa lawyers came to town
    Knocking on Bill’s door
    Billy boy they said
    We’ve got news that’ll make your heart soar (sore?)

    About 10,000 or more SW patents have we, no BS
    What have you got laddie to trade with us, God bless?

    Billy pulled out his IP pocket
    But it was patent-less

    We’ll take your first born son then
    Said the IBM lawyers with happy bliss

    Hand over your source code
    And so he did

  41. Step-

    Excellent points! Even without the unfair activities Microsoft was alleged to have engaged in, which I think they probably did most of, by IE3 the Microsoft browser was already better than Netscape (in my opinion).

    Yes, first to market matters little if others have a better product and well developed business strategy. Patent are, of course, a part of that well developed business strategy. Whether offensive or defensive you need to have them if you want to be a player.

    -Gene

  42. Sarah-

    I have no idea what you are talking about.

    -Gene

  43. @curmudgeon. You have to smile only in the USA! A better example of the madness I have yet to see. What Gooseberry needs is a big Rasberry!

    @Step. Netscape….sigh….such happy memories, Visicalc…sigh …not so happy memories. Billy boy …aha!….that is why he converted he came under the influence of the The Big Blue Fairy!

  44. I agree that the “patent troll” is a myth propagated mainly by large corporations angered after having to pay up for infringing others’ IP rights. Apparently, trolling is in the eye of the beholder. To my mind, deliberate infringement is worse than asserting a valid right.
    http://www.generalpatent.com/media/videos/patent-troll

  45. The only definition that most non-lawyers will agree with is “someone who isn’t actually practicing a claim and yet wants to extort money from someone who may or may not be infringing” regardless of the size of the company. I say, USE IT OR LOOSE IT!

  46. “I say, USE IT OR LOOSE IT!”

    You should say “or lose it”.

    But what is “using it”, when “it” is a patent? A patent doesn’t give you the right to practice your invention. Your validly patented invention might infringe a hundred other patents, or might require regulatory approval you don’t have. A patent only gives you the right to stop other people from practicing your invention. The only way to “use it” is to license it out or to sue infringers, which is exactly what these “patent trolls” are doing.

  47. What you said is an example of what is wrong with America. There should be very few if any differences between what is common sense and what is legal. BTW, pity the poor person who only knows how to spell a word one way.

  48. “What you said is an example of what is wrong with America.”

    If the fact that patents grant a negative exclusive right is an example of what’s wrong with America, your quarrel is with the Constitution and not with me.

    “BTW, pity the poor person who only knows how to spell a word one way.”

    Right. Everyone has different beliefs on how that word should be spelled. Our public schools should teach the controversy, giving equal time to both sides.

  49. Toyota recently found out about US negative patent rights the hard way!

    I suppose what Barry is eluding too is that a large company with a patent portfolio of 4000 patents has a serious negative right compared to the SME with one patent, which essentially has a weak negative right. This is not just a US problem. The NPE market may help with small inventors getting some value for their patents. But that is not the main problem.

    How do we ensure that the SME does not get swamped by large suspect patent portfilios in the hands of Big Co.? They just file patents in volume to trade with other Big Co’s when they have to and to keep the small operators out of the market through the self same mechanisms they whine about when they are being booted by Trolls.

    @IANAE …spelt? ;-) Or is this a case of “you say tomato i say tomaytoe”?

  50. “eluding too”

    “spelt”

    I see what you did there. Very amusing.

    I suppose what Barry is eluding too is that a large company with a patent portfolio of 4000 patents has a serious negative right compared to the SME with one patent, which essentially has a weak negative right. This is not just a US problem.

    That’s not a bug, it’s a feature. When you own more stuff, you get more of the benefit of owning stuff. You can do more with 4000 adjoining plots of land than with a single one. All of capitalism is based on the assumption that people want to be rich, and that only happens if rich people can have nicer things.

    But just as large companies shouldn’t have been completely surprised when 4000 seemingly-powerless co-workers joined together to have greater economic leverage in salary negotiations, they shouldn’t be completely surprised that the small companies realizing the value of their patents are the ones who have aggregated a lot of seemingly-powerless individual patents, and who also have no products of their own to be kept out of the market.

    In capitalism you seek your fortune, but you quickly find that everybody else is seeking it too.

  51. LOL. My efforts are rarely appreciated.

    Hmmm. If I am surrounded by 4000 plots of land at least I can live and die on my own plot even if I can’t get to McDonalds for fear of trespass. But if I try to make my own widget on my own plot death arrives much sooner!

    Nope it’s a bug! So capitalism is first mover advantage? The first to 4000 patents wins? The only option for the SME is to sell his patent to an NPE, close up shop, and roll over and die? Happy in the knowledge that at least the NPE is getting a few pounds of flesh out of the Big Co. Then you have US citizen sat to one side watching this sad saga unfold wondering if this is relevant, good or bad for him/her.

    What you highlight is the route to value for patents that are redundant to the originator. I know. I know. SME patents in my scenario are inherently redundant because they are neutered so why bother. Big Co. will get a licence from the NPE so all are happy bunnies?

    Spot the loser.

  52. “But if I try to make my own widget on my own plot death arrives much sooner!”

    That’s the difference between a positive right (title to realty) and a negative right (exclusive right to a claimed invention). Your title to land gives you the right to enjoy that land.

    “So capitalism is first mover advantage?”

    Capitalism is advantage of economic power, in whatever form it takes. If the NPE can get more money out of the patent than the SME can, the SME and NPE will quickly agree on a price for that patent. The SME can retain a license, and everybody is happy. Economic efficiency wins the day, much as it does when assembly line workers at BigCo are replaced by Mexican robots.

    “Big Co. will get a licence from the NPE so all are happy bunnies? “

    The prospect of the NPE licensing BigCo should allow SME to command a higher price for his patent.

  53. You did’nt spot the loser!

  54. “You did’nt spot the loser!”

    I did, but I thought it would be impolite to call attention to him.

  55. Glad to see you understand the distinction between property and patent because I had my doubts from your previous post.

  56. LOL.

    It’s a trick question. It’s all of us.

  57. “It’s all of us.”

    Not if the patent system functions properly. We get an enabling disclosure of the invention, the inventor gets his reward which encourages future inventors to do the same thereby promoting the useful arts, and BigCo uses the invention in products we can buy.

    That’s the bargain we all agreed to some centuries ago, when we decided that patents were a good idea. Are you saying we cut a bad deal? Should we ask for our $24 worth of trinkets back?

  58. Excellent!

    I’m so pleased you mentioned the patent system and its purpose. My faith is restored…partially. Patents are a wonderful invention…… really.

    If the patent system functions properly? In the real world or your world?

    What about perpetual monopolies? How about competition for Big Co.? Do you trust Big Co. to always deliver for you at a competitive price? Would you not rather see New Co. taking their invention to market and fairly competing with Big Co.? What about entrepreneurs who don’t want to sell their patents (and soul) on the cheap to Big Co. or to NPEs? Is this innovation? What is the value of all the enabling disclosures from Big Co. that are clearly not inventions and are of no use to humanity? Should they be allowed to outweigh the highly valuable enabling disclosure of New Co. in the way that they do with the consequnces we see? The Big Co. patents were granted because the patent system does not function properly and they play the numbers game.

    Not sure this looks like the result we expected or need.

    We all lose because this situation stifles innovation and the entrepreneurial spirit. Patent Trolls at the extreme are bad (just) for some. LPEs with anti-competitive patent estates, that swindle the system, are bad for all.

  59. “What about perpetual monopolies?”

    What about them? You’d have to justify them under the Commerce Clause or something. Patents are granted for a limited time.

    “Do you trust Big Co. to always deliver for you at a competitive price?”

    Of course not, but I wouldn’t trust them to do that regardless of the patent system. However, I would trust BigCo to use economies of scale to undercut Joe Inventor on the exact same product while still turning a profit, and what more can one really ask of a competitive market between profit-driven suppliers?

    “Would you not rather see New Co. taking their invention to market and fairly competing with Big Co.?”

    Sure, but it’s inherent in the patent bargain that someone or other is likely to have no market competition on its patented invention for a while. That’s the price we all agreed to pay for innovation.

    And for all you know, TrollCo might license the entire industry, so you’d have half a dozen companies fairly competing, instead of one independent inventor charging monopoly prices. TrollCo is profit-driven, after all.

    “What about entrepreneurs who don’t want to sell their patents (and soul) on the cheap to Big Co. or to NPEs?”

    What about them? People with higher priorities than profit shouldn’t complain that they’re not making enough profit.

    If they want to start their own business, great. Businesses come with risks and costs. Businesses sometimes fail. A patent is no guarantee of business success, and was never meant to be. And if their business does ultimately fail, at least they can still sell their patent.

    “What is the value of all the enabling disclosures from Big Co. that are clearly not inventions and are of no use to humanity? “

    Nothing, if you’re going to phrase it that way. Disclosures that are clearly not inventions and clearly not useful should not issue to patent.

    If you think particular patents don’t disclose an actual invention, or they’re clearly lacking in utility, request re-exam for them. If you think they’re “of no use to humanity” because they’re not being practiced, I refer you to this post.

    “The Big Co. patents were granted because the patent system does not function properly and they play the numbers game.”

    You don’t actually know that about every single hypothetical patent granted to this hypothetical company. It’s easy to hate on big companies, but that doesn’t mean any or all of their patents are necessarily worthless. A big company is just as entitled to a patent as an independent inventor would be for the same invention.

  60. “What about perpetual monopolies?”

    What about them? You’d have to justify them under the Commerce Clause or something. Patents are granted for a limited time.

    “Do you trust Big Co. to always deliver for you at a competitive price?”

    Of course not, but I wouldn’t trust them to do that regardless of the patent system. However, I would trust BigCo to use economies of scale to undercut Joe Inventor on the exact same product while still turning a profit, and what more can one really ask of a competitive market between profit-driven suppliers?

    “Would you not rather see New Co. taking their invention to market and fairly competing with Big Co.?”

    Sure, but it’s inherent in the patent bargain that someone or other is likely to have no market competition on its patented invention for a while. That’s the price we all agreed to pay for innovation.

    And for all you know, TrollCo might license the entire industry, so you’d have half a dozen companies fairly competing, instead of one independent inventor charging monopoly prices. TrollCo is profit-driven, after all.

    “What about entrepreneurs who don’t want to sell their patents (and soul) on the cheap to Big Co. or to NPEs?”

    What about them? People with higher priorities than profit shouldn’t complain that they’re not making enough profit.

    If they want to start their own business, great. Businesses come with risks and costs. Businesses sometimes fail. A patent is no guarantee of business success, and was never meant to be. And if their business does ultimately fail, at least they can still sell their patent.

    “What is the value of all the enabling disclosures from Big Co. that are clearly not inventions and are of no use to humanity? “

    Nothing, if you’re going to phrase it that way. Disclosures that are clearly not inventions and clearly not useful should not issue to patent.

    If you think particular patents don’t disclose an actual invention, or they’re clearly lacking in utility, request re-exam for them. If you think they’re “of no use to humanity” because they’re not being practiced, I refer you to post 46 upthread.

    “The Big Co. patents were granted because the patent system does not function properly and they play the numbers game.”

    You don’t actually know that about every single hypothetical patent granted to this hypothetical company. It’s easy to hate on big companies, but that doesn’t mean any or all of their patents are necessarily worthless. A big company is just as entitled to a patent as an independent inventor would be for the same invention.

  61. “What about perpetual monopolies?”

    Patents are granted for a limited time? Yikes when did that happen? Why was I not informed? Does the Queen know?

    What I am referring to is Big Co always having the patents on new improvements acquired from New Co. By exercising their dominance and playing the system they generate a perpetual patent estate that is too costly for New Co. to address.

    “Do you trust Big Co. to always deliver for you at a competitive price?”

    What competitive market between profit driven suppliers? There is only one supplier. New Co died. There is a profit driven supplier but no competition.

    “Would you not rather see New Co. taking their invention to market and fairly competing with Big Co.?”

    ” it’s inherent in the patent bargain that someone or other is likely to have no market competition on its patented invention for a while”. Err patents are a negative monopoly correct? This is not inherent at all. It’s highly likely that New Co will have unfair market competition dawn on day one. We are not talking about a level “patent” playing field here.

    I would rather have a true market determine the best root for monetization as opposed to a Troll. I have nothing in particular against Trolls. It’s also not good that Big Co charges monopoly prices even though through economies of scale they make massive margins.

    “What about entrepreneurs who don’t want to sell their patents (and soul) on the cheap to Big Co. or to NPEs?”

    What higher priorities? They do want to see enormous profit from their ideas and hard work. Not a rip off patent sale. There may be other reasons for business failure but a big one for many start-ups is dominant intractable patent estates owned by Big Co. Roll over and die.

    “What is the value of all the enabling disclosures from Big Co. that are clearly not inventions and are of no use to humanity? “

    I’m not talking about patents not being practiced. The patents I am talking about are those that lack utility but are a threat to the practice of technology protected by legitimate patents.

    Disclosures that are clearly not inventions and clearly not useful have regularly issued from the USPTO and apparently last for 20 years (I looked it up).

    Re-examination! Try getting a VC to pay for 100 re-examinations for commercial certainty before they invest. You know capitalists are a bit wobbly in these scenarios.

    “The Big Co. patents were granted because the patent system does not function properly and they play the numbers game.”

    You probably don’t realise this but I do know how to suck eggs. In my working life I have seen the game from all angles. Trust me very many Big Co patents are simply punts and they know it. If you think that large corporate patent portfolios are awash with innovation you are sadly mistaken.

    They do protect great and genuine innovation but they also have patent drafting monkeys in far flung places churning out crap to file at the USPTO and guess what? Lots of crap gets granted. Are they bothered? No. Because it’s someone else’s problem.

  62. I don’t think there is any such thing as a “patent troll”. Those who buy up patents to litigate their infringement buy them *from* the innovators who created the ideas. They do reward the innovators. Even if they buy the patents at bankruptcy, the money they pay helps to reimburse creditors and this process makes it easier for innovators to get loans.

    I suppose you can argue there’s some problem with someone who pays a small amount of money for a patent and then sues for a large amount. But that only seems to be a problem when they pay too little. Would people feel similarly about people who buy cheap clunker cars and, refurbish them, and then sell them for much more? It’s quite the same thing. If the lawsuit were a slam dunk, the innovator could get more for the patent. A large award is a result of value added by the purchaser.

    And, of course, if they use unscrupulous practices to push claims that wouldn’t hold up in court or intimidate people into paying licensing fees for patents they know are invalid, that is contemptable conduct. But it’s just as contemptable when done by an innovator against a competitor. The nature of the entity doing the abuse doesn’t make the abuse any different.

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