Patent Trolls Are Killing Innovation, But Inventors Shouldn't Let Them
Patent trolls are killing innovation and inventors shouldn't let them.
But how can you help as an individual, entrepreneur or inventor?
It's no secret that patent trolling hinders the ability of individual inventors to successfully bring new ideas - ideas the world is thirsting for - to market.
Several governmental bodies such as Congress and The White House have been involved in trying to slow down these companies that are acquiring numerous patents, but never lifting a finger to manufacture, license, or bring products to market.
The patent process in the United States is designed to foster a culture of innovation.
The economic implications that new inventions have on an annual basis is monumental, if even quantifiably measurable.
Trolling strips the everyday inventor of their ability to think outside the box. Instead, inventors are ideating in fear that the creations they bring to the table will break infringement laws from a patent some troll is holding and there's someone out there just waiting for them to bite the cheese in that mousetrap.
That's how patent trolls are killing innovation.
What Exactly Is A Patent Troll?
Patent trolls are shake down artists and hoarders at their core (a little credit to John Oliver there).
Definition-wise, persons or companies that try to enforce their autonomous right to a patent against people or other companies that they feel have infringed upon their patent, often times beyond the actual value of said patent, are described as patent trolls.
Basically its all about people and companies scooping up patents and then not leveraging them to do anything good for society. Patent trolls don't end up supplying services or manufacturing products covered by the patents they have obtained.
Patent trolling is an ambiguous term, translating to many different definitions. Yet, none of these definitions of what patent trolling is are satisfactorily considered in exactly how the law should treat patent trolls.
A party can be broadly described as a patent troll if it performs one or some of the following:
Patent trolls, or NPEs (non-practicing entities), yield profits from innovation solely by enforcing patents against infringers - usually inventors.
They are often characterized as relying on low-quality patents, implying that eradicating such patents would effectively terminate the NPE business. That's just a hypothesis, but studies about it have been pervasive.
Patent trolls are a red hot topic, quickly turning white
The rise in the number of patent trolls has been attributed to the high cost of contesting a patent infringement lawsuit.
To complete a patent infringement defense, the cost runs into millions of dollars, and still, success is not guaranteed.
Hence, defenders often agree to settle patent infringement lawsuits out of court, even if they know or feel the lawsuit is frivolous or unmeritorious.
The high cost and the inherent risks in going through a defense, as well as the unpredictability and uncertainty of jury trial verdicts in the U.S courts, encourage settlements.
Patent trolls are essentially encouraged to continue in the act, knowing that they are liable to being paid hugely by companies who wouldn’t want to rack up legal costs.
They also intimidate other companies into buying licenses for the said product or service.
Apart from this, it has been mooted in some quarters that patent market distortions, especially those that are caused by examination backlog, promote and encourage patent trolling.
According to some studies, it was found out that patent trolls often file patent infringement lawsuits against companies that are staffed with lesser number of attorneys.
In effect, companies are encouraged to invest more in their legal representation at the detriment of technology developments.
Patent trolls opportunistically go after companies with their financial might
Studies have shown that patent trolls opportunistically go after companies with financial might, and understandably so, even when the company’s large stash of cash is not from the proceeds of the invention or technology in question.
Patent trolls also tend to target companies before they start making profits from the product in question, thereby discouraging them from investing in newer technologies.
In recent times, patent trolls have shifted attention from patents covering mechanical and chemical inventions to those covering software.
This is because it is very hard to define the scope of patent claims for software, as against the more defined and specific compounds contained in chemical or mechanical patents.
Software patents have therefore been mooted to be particularly susceptible to patent trolling.
All patent trolls are not created equal when it comes to litigation
There is one common theme amongst patent trolls: Greed.
Outside of greed, it's challenging to talk uniformly about who patent trolls are and exactly what they do.
Rather than try to bulk all trolls into one persona, let's examine some of the characteristics and qualities (not to be confused with "quality") of patent trolls so that you, as an inventor, can prepare for what may lie ahead with trolls.
Patent trolls are trigger happy
A patent troll does not have to be 100% certain that an inventor is infringing on a patent they hold if they want to sue.
They could be speculating and/or waiting on information that confirms something as thin as a hunch.
This actually sucks for inventors.
Because even if the accusation is proven false in litigation, they're spending that corporate money to waste your time.
As an entrepreneur, you're probably not backed by folks that can handle the case - you have to go to court, show face, and argue your case. That's a lot of time you're not investing in innovation.
Hence, patent trolls are killing innovation, even when they are wrong.
As an inventor, you want to be prepared for this.
Easy - do your homework and research.
Make sure you can plausibly demonstrate that your idea or invention does not infringe on any existing patent. If you've done a patent search, that data could prove useful as well. This is why it's recommended to get professional help with patent searches.
The validity of a patent trolls held patent can, and should, be questioned
Trolls often acquire patents through third parties.
When and where this is the case, it's safe to presume the holder doesn't know the ins and outs of the patent - its issues, its history, etc.
For instance, the patent may name one inventor, when indeed it should have been double patented - if this is the case, you've got them and are in a safer place.
There may have been a missed maintenance fee or a gap in chain of titling of (who held) the patent - these are good situations for you as the inventor.
Make sure you and your counsel investigate all aspects of the patent's history early on in litigation.
Patent trolls generally are not looking to go to trial
Trolls are scary, especially for inventors.
But don't let them threaten and intimidate you as an inventor.
Here's the thing: Going to trial costs a pretty penny for the troll.
Even though trolls make a business out of litigation and its easy to infer "court is what they do," the truth is that every case is atypical. They need different resources, different experts, different research; the process is not just a cut and dry repeatable thing.
Beyond that, patent trials have myriad complexities. There are constantly unforeseen issues and evidence brought to the table, and one slight gap or misstep in the troll's approach can quickly and easily lead to dismissal.
As you'd expect from a movie troll, patent trolls are persistent little rodents
Patent trolls are in the litigation business, and they are in it for money.
They understand potential arguments, tactics and strategies that can be used against them.
Inventors who roll over and pay to make litigation go away rather than fight the trolls make themselves targets for future litigation.
So inventors, this is a call - you need to fight patent trolls because they won't go away and they are killing our future.
Quick sound byte: Why are patent trolls called "trolls"?
"Patent Trolls" are named after the trolls in the classic story Billy Goats Gruff!