Study: Media use of the term “patent troll” negatively predisposes readers, courts

By Bruce Berman
May 8, 2016

devil-shadow-businessman“Patent troll,” the term employed by leading newspapers, magazines and online publications to describe how some patents are owned and used, provides a prejudicial impression of patent licensing that unfairly influences attitudes towards disputes.

This is among the findings of the research conducted by Illinois Institute of Technology – Chicago-Kent College of Law Professor, Edward Lee. Writing in the Stanford Technology Law Review, Professor Lee says that while “some courts have even barred the use of the term [patent troll] altogether during patent trials on the ground that the term is unfairly prejudicial. But, among the mainstream media, the term is pervasive.”

 

Moral Panic

Patent Trolls: Moral Panics, Motions in Limine, and Patent Reform, published on April 22, is the first empirical study of how the term patent trolls is treated in the media. Its findings confirm what some courts have already stated: patent trolls is an inaccurate and often misleading term best left in the slag heap of derisive and prejudicial descriptions.

Professor Lee’s article states that starting in 2006, the U.S. media surveyed used “patent troll” far more than any other term, despite the efforts of scholars to devise alternative, more neutral-sounding terms (see table). The tipping point came during the combination of the controversial Blackberry and eBay patent cases in 2006 — prior to that time, “patent holding company” was the most popular term.

 

Table 1: Total Number of Uses of Each Term and Contested Uses

Table 1: Total Number of Uses of Each Term and Contested Uses

Since then, the article states, the media more often portrayed such patent entities in a one-sided, negative light with very little analysis or factual support.

Until now, few works have provided statistics or discussion of any studies to support their negative portrayal. Practically no articles using the term mentioned the lack of a working requirement in U.S. patent law, which permits all patentees the right not to practice their inventions, should they so choose. Professor Lee’s findings provide support for the recent judicial decisions that have barred, at trial, the use of the term “patent troll.”

 

Table 3: Top Seven Sources Reporting - All Works

Table 3: Top Seven Sources Reporting – All Works

Deeper Dive

A useful next step would be to drill down below this Professor’s Lee’s excellent initial work to determine which reporters at what types of publications have used patent troll and other misleading terms, and when.

This type of media analysis – sorely lacking in the IP space – will be conducted by the Center for Intellectual Property Understanding, a non-profit education organization that was recently established with several thought-leaders.

CIPU board members include Marshall Phelps, Keith Bergelt and Harry Gwinnell. Retired Chief Judge for the Court of Appeals for the Federal Circuit, Hon. Paul Michele, also a supporter, assisted in the formation. The Center for IP Understanding focuses on improving attitudes towards patents through better awareness and innovative education.

 

Table 2: Types of Works Describing Entities in Positive or Negative Light.

Table 2: Types of Works Describing Entities in Positive or Negative Light.

“The findings of this study,” concludes Professor Lee, who is Director of the Program in Intellectual Property Law at IIT, “suggest that the term may operate as a moral panic in a way that is detrimental to reasoned analysis and consideration of the root problems related to the issue of abusive patent litigation tactics.”

To obtain a copy of Patent Trolls: Moral Panics, Motions in Limine, and Patent Reform, go here.

Figure 3: Relative Uses of Terms Describing Entity Per Year, Weighted Proportionally by Use in Works. Image source: Stanford Technology Law Review.

Figure 3: Relative Uses of Terms Describing Entity Per Year, Weighted Proportionally by Use in Works. Image source: Stanford Technology Law Review.

 

The Author

Bruce Berman

Bruce Berman is principal of Brody Berman Associates, a management consulting and strategic communications firm he founded in 1988. He has supported 200+ IP portfolios, executives and businesses, including law firms and their clients. Bruce is responsible for five books, including From Ideas to Assets and The Intangible Investor and The Intangible Investor. He also writes The Intangible Investor column, which appears in IAM magazine. His weekly posts about trends can be seen at IP CloseUp. In 2016, Bruce founded the the Center for Intellectual Property Understanding, an independent, non-profit that focuses on IP awareness and education.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 11 Comments comments.

  1. Anon May 8, 2016 8:51 am

    First question:

    Will the study also focus on the type of entity that launched the pejorative use of the term (a Big Corp firm) and why they launched that term (certainly not for the benefit of anyone else or anything else other than their own bottom line)…?

    Second question:

    Will the results be shared with the White House, who have seemed to have lost their way in responding to Ron Katznelson’s detailed inquiry into the very same type of “propaganda” use of the term in the White House “White”*** paper?

    ***the actual wavelength of the White House paper is about 570 to 590 nm.

  2. Bemused May 8, 2016 12:58 pm

    Anon,

    Well said (or more accurately, excellent questions).

    Bemused

  3. Benny May 9, 2016 5:21 am

    Having read several articles on patents in the popular and engineering press, it is obvious that most (but not all) writers do not differentiate between NPEs or PAEs, who conduct a legitimate business, and patent trolls, (or patent system abusers), whose antics are sometimes little removed from mob tactics (i.e, threatening non-infringers with lawsuits unless they “settle”).
    Case in point – A CA attorney told me a tale of a troll who threatened an “infringer” with a patent that had expired due to non-payment of fees.
    The problem here is that 99% of the NPEs are giving the other 1% a bad name (or is it the other way ’round?)

  4. Bruce Berman May 9, 2016 8:33 am

    My guesstimate is that today something like 5% of “black hat” NPEs are making life difficult for 95% of legitimate licensors. Why is it no longer possible to out-license without first suing? Do the “ankle-biters” lack quality or capital, or is the march to trial simply no longer viable? Do they settle early because of lack of quality or the gruesome economics of infringement?

  5. EG May 9, 2016 8:37 am

    Someone should also inform Justice Breyer of this study as well. His “patent troll” mantra in oral argument is never ceasing, as recently witnessed in Cuozzo Speed.

  6. Night Writer May 9, 2016 2:09 pm

    The best minds were paid to come up with “patent troll.” You have to hand it to them. The propaganda machine of K Street is strong.

  7. angry dude May 9, 2016 10:36 pm

    Sick and tired of this
    Just find me another planet

  8. staff May 10, 2016 12:51 pm

    ‘“Patent troll,” the term employed by leading newspapers, magazines and online publications’

    When invention thieves define it, we’ll respond to it.

    The patent system now teeters on the brink of lawlessness. Call it what you will…patent hoarder, patent troll, non-practicing entity, shell company, etc. It all means one thing: “we’re using your invention and we’re not going to stop or pay”. It’s a pure red herring by large invention thieves and their paid puppets to kill any inventor support system. Their goal is to legalize theft. For the last several years now they have been ransacking and looting small entities taking everything they can carry. The fact is, many of the large multinationals and their puppets who defame inventors in this way themselves make no products in the US or create any American jobs and it is their continued blatant theft which makes it impossible for the true creators to do so. Invention thieves well know many inventors lack the resources to enforce their patent rights so their only recourse is to sell to or partner with others who do have the resources. Otherwise, large invention thieves just thumb their noses at you and steal at will. To infringers the only patents that are legitimate are their own -if they have any. Meanwhile, the huge multinationals ship more and more American’s jobs overseas.

    For our position and the changes we advocate to truly reform the patent system, or to join our effort, please visit us at https://aminventorsforjustice.wordpress.com/category/our-position/
    or, contact us at tifj@mail.com

  9. step back May 10, 2016 4:32 pm

    Night Writer writes at #6:

    The [force of the] propaganda machine on K Street is strong.

    That misunderstates the severity of the problem.

    It was Alvin Toffler of Futuer Shock fame who predicted that the technology of deception will outpace the technology of truth and verification.

    https://en.wikipedia.org/wiki/Future_Shock

    He was spot on. Propaganda technology has made huge strides forward.

    Justice Breyer is a pawn in the Joseph McCarthyzation of the inventor community. Inventors are no longer modern day Edisons. They are ‘trolls’. And in the minds of Breyer, Kennedy and ilk, these troll inventors are busy abusing 2nd year engineering students by having the latter code up abstract ideas over their home work free weekends on their generic computers, that is if they are not busy lathing the trunks of banana trees into baseball bats. Has SCOTUS gone bats? Yes. Why? Advanced K Street technologies. Welcome to the future and its back-to-Medieval-times mind meld shocks.

  10. Ron Katznelson May 13, 2016 2:13 am

    Anon,
    The White House just recently responded to my IQA RFC on the “Troll” Report almost a year late. As expected, the “response” is a non-response, ignoring all my 21 requests for correction. I filed an appeal on the non-response. Stay tuned for my article on this story.

  11. Anon May 13, 2016 10:07 pm

    Thanks Ron – I am completely nonsurprised by your characterized “non” response from the White House and do look forward to your article.

    Thank you for undertaking this!

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