imagesDo you know that there are real Trolls living in the United States?  No, they are not hiding under bridges, frightening children on their way to school.  And although someone who posts inflammatory, extraneous, or off-topic messages in an online community, such as a forum, chat room, or blog, is often termed an Internet Troll, they are actually rodents of the species, Dontus Havalifus.  No, I’m talking about Patent TrollsPatent Trolls are companies whose only means of income is the aggressive litigation for patent infringement in hopes of receiving lucrative settlements from companies that actually produce something.  Technology companies often settle out of court because of the prohibitive cost of patent litigation (approximately $2.5M if the case goes to trial) and the risk of a negative verdict, particularly if the case goes to jury trial.  Patent Trolls have no intention of ever using the patents they own, which are often purchased from companies going through bankruptcy proceedings.  You’re probably wondering, Why should I care?   You should care because Patent Trolls are stifling innovation in this country, which threatens our ability to compete in the world economy. Small companies are particularly affected because litigation is not an option due to cost.   Recently, a small company owned by a friend won a job under the Small Business Administration’s Small Business Innovative Research Program.  Within one day of the announcement, my friend received a call from a Patent Troll telling him that whatever they came up with would violate a patent the Troll held.

That is, of course, another problem – overly broad patents and the sorry state of our patent system.  The growth of technological innovation has overwhelmed the patent office in recent years.  In addition, patent applications for computer software have blurred the definition of what is patentable.  The long standing requirement for Reduction to Practice has much more meaning for a physical device than a computer program and since the program is written in publicly available code, exactly what is patented? Faced with a growing backlog of applications, the Patent Office frequently issues patents without adequate review of prior art, assuming issues will be resolved in court if litigation ensues.   It is common practice for patent attorneys to make the Claims in a patent (the part of a patent which specifically defines what the patent protects) as general as possible which, without adequate review, plays right into the hands of Patent Trolls by resulting in patents for entire areas of technology.  A recent article on PatentlyO titled, Patent Trolls by the Numbers, said that 62% of all patent litigation cases in 2012 were brought by Patent Trolls.  It is getting to the point that companies, particularly smaller companies are foregoing patents in favor of treating proprietary technology as Trade Secrets and using ironclad proprietary agreements when dealing with other companies.  So, a system designed to encourage innovation has been corrupted to discourage it.

If you’re still with me this far in … and not bored to death … you probably wonder what can be done.  Most efforts are focused on making it more expensive for Patent Trolls to work their evil ways.  Laws could be changed to make the Trolls pay all the legal expenses in if their suit is not successful.  Some large companies are beginning to fight frivolous patent litigation in court rather than settle and some companies are forming alliances to fight known Patent Trolls together, both through counter suits or lobbying for changes in patent laws.  However, as an article on points out, large technology firms are not above exploiting the weakness in our patent system for their own benefit.  Maybe the whole big data industry could be convinced to set competitive concerns aside and put resources behind that effort, the articles states.  Whatever they do, though, technology companies need to stop bemoaning patent trolls and promoting innovation on one hand and then suing each other with the other.  Until that day, small companies will potentially suffer every time they come up with something new that threatens to be profitable.

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One Comment on “Trolls”

  1. territerri Says:

    I had no idea whatsoever that patent trolls existed. The very idea that someone would purchase a patent without any intention of ever using it except to sue another for violating the patent…. well it’s disheartening to say the least. It’s sad to realize that the almighty dollar wins out at the expense of creativity and advancement. No wonder this country is falling apart.

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