One of the purposes behind intellectual property laws is to promote innovation, creativity and a company's good will. In order to achieve this, intellectual property laws allow persons or entities to protect their intellectual property against misappropriation, misuse, or copying by others. As with all good intentions, there will always be those who decide to "game" the system for their own benefit. See my recent posts regarding the now infamous, Prenda Law Firm. As shown by the exploits of Prenda, there are copyright "trolls," as well as patent "trolls." A patent troll is typically defined as an entity who purchases patents with no intention of supporting the development of technology or produce goods. The main (or sole) purpose of purchasing the patents is to collect fees by way of settlement of threatened or actual litigation.
Everyone, except for maybe the trolls, agrees that trolls are bad for businesses and intellectual property because they essentially extort money from businesses by filing lawsuits. Patent litigation is probably one of the most expensive types of litigation around--and "generic" litigation is not cheap at all. For a long time, there was a collective "what can you do?" feeling about patent trolls. Even though, according to a study by the White House, patent defendants paid approximately $ 29 billion to troll-like plaintiffs in 2011 with a fraction of that amount being put back into research and development for new innovations or creations. According to Santa Clara University Law Professor, Colleen Chen , about 61% of all patent lawsuits in 2012 were brought by troll-like plaintiffs. While I admit that I am all for attorneys getting paid, it does make more sense for companies to use their resources towards further innovation rather than paying for frivolous intellectual property lawsuits.
Now, the Obama administration appears ready to try to tackle the problem. Recently, the administration provided a plan by way of legislative proposals and executive actions to limit, if not eradicate, the patent troll. For example, one proposal makes it easier for victorious defendants to collect their attorneys' fees for frivolous patent lawsuits. Another proposal seeks to protect end users (who are the type of small-time victims preyed upon by Prenda Law Firm in the copyright context) from patent infringement litigation. In my opinion, the biggest aspect of the administration's plan is to reform the way patents are issued. Many of the patents used as swords by the trolls are not very well written and probably should never been issued in the first place. For example, the patent office does not always issue a patent that describes the actual process by which the goal of the invention is reached. Instead, it issues the patent for the goal (not the process). Thus, these "goal" patents allow a patent troll to foreclose any other way to achieve that same goal, even if that alternate way is more inventive or different. However, by requiring the patent to describe the process of achieving the goal, then other innovative types may avoid patent infringement claims by trolls by inventing another process of achieving the goal.
Indeed, earlier in my career, I worked on a patent case where the patent was so vague and broad that the "owner" of the patent asserted it against several different types of technologies (including those that did not exist at the time the patent was issued) which were obviously not the point of the patent. Many of the patent attorneys and experts working that case agreed that the patent was not very well written and was easily abused.
It is easy to see how the perfect storm of lax scrutiny of patents by the United States Patent and Trademark Office and those who seek to take advantage of that laxity created these trolls. It is high time to banish the trolls to under the bridges where they belong. Hopefully, these initiatives by the administration will help achieve some of its goal of eradicating patent trolls.
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