Monday, May 08, 2006

Wisconsin State Journal--who are the trolls?

In a May 7 article titled Innovators fear the patent trolls, the Wisconsin State Journal features a patent infringement story involving the Madison company Esker which develops business-to-business software, and a small Atlanta firm called Catch Curve claims Esker is violating its patents, which cover fax systems and e-mail. Esker and Catch Curve have filed suit against each other in U.S. District Courts in Madison and Atlanta.

We have another attempted definition of patent troll: A term that's become popular lately in patent litigation is "patent trolls," used to describe companies that register or buy patents but have no plans to make any product based on the patent.

The Esker case is viewed as a troll case: In November, Esker first heard from Catch Curve, court documents say, when the Atlanta company declared, in 3 inches of documents, that it holds patents on fax systems and proposed Esker pay a $1 million license fee.

What followed were 42 e- mails, 26 phone calls and at least one express delivery.

"All of these communications centered on a single issue: Catch Curve's eagerness to obtain a seven-figure price for patents it had nothing to do with developing," says Esker's lawsuit against Catch Curve.

Catch Curve is a "patent troll," the lawsuit says, whose business model is "based on a single premise: extracting exorbitant license fees from real companies who on a daily basis innovate and develop new products for their customers."

The Wisconsin State Journal rather obliquely suggests that WARF might be considered a troll by some:

Carl Gulbrandsen, managing director of WARF, takes it a step further. Patent trolls "don't exist. Trolls are imaginary creatures," Gulbrandsen said. "I think the whole issue is overblown."

WARF, a middleman organization that owns patents on discoveries made at the UW and licenses them, could be considered a patent troll under some definitions, he said.

"Patents are a piece of property. To say that it's wrong that a company acquires property and then expects to be paid for use of that property, I think, is a pretty simplistic approach," Gulbrandsen said.

The Wisconsin State Journal does not mention that some recent articles have suggested that the WARF/Thomson patents in the area of embryonic stem cells are a bigger obstacle to research in the area than President Bush's 2001 limitation on federal funding in the area. Whether that assertion is true is one thing, but for the Journal to ignore the issue is inexcusable. This issue is currently a big deal as to California's Proposition 71.

Similarly, the Journal noted: This year and last, 1,000 patent examiners a year have been hired; that will continue for three more years, adding to the current 4,500 examiners but the Journal did not mention the rate at which examiners are leaving the USPTO.

The PHOSITA blog suggested that this might be the first time universities were suggested, in print, as possible trolls: Ahh… someone finally put into print what a lot of us patent practitioners have wondered for awhile – when would someone claim that universities are patent trolls?

Not even close...

CIO in an article entitled Has the Enemy of Patent Trolls Become One? published December 5, 2005 talks to Peter Detkin:

[CIO] Some people consider a "patent troll" to be any person or business that doesn't produce a product or service, but instead makes money from licensing and patent assertion primarily. Has the definition of the term you coined, "patent troll," changed since you coined it?

[Detkin] At best, I would say it's become a little bit more refined. My concern is that the term has now been used so broadly as to mean any plaintiff you don't like. Look at the definition you just used. Under that definition the University of California is a troll, Intel's a troll—and since I was at Intel at the time, Lord knows I wasn't trying to call myself a troll. But Intel routinely asserts patents—that it bought, that it's not practicing—against others, looking for money. IBM would be a troll. Thomas Edison would be a troll.

NAPP wrote in May 2005: To the extent that the term [troll] is used to derogate inventors who do not develop corporate structures or manufacture products, NAPP believes that inventors who merely invent but do not manufacture products – which, after all, includes most university and government researchers – do not deserve epithets or less patent protection.

Martin Lueck wrote in September 2005: For example, Eolas and the University of California have been berated as patent trolls since their $521 million victory against Microsoft. Lueck also stated: "I don't hear anyone saying IBM is a troll — even though they have a bunch of patents and license them. To suggest that the University of California is a patent troll is absurd — they make contributions just like corporate America, and they want to protect their intellectual property."

Separately, Michael Kanellos wrote:

Moreover, Stanford University made itself into a global powerhouse in part through licensing patents to professors and students who had start-ups. Without an exclusive license of Stanford's PageRank patents, Google wouldn't be the behemoth it is today. Though the PageRank technology was invented by Google founders Sergey Brin and Larry Page, they were Stanford students at the time, and the university owns the patents.

[One might also find discussion on the university/troll issue within the posts of IPBiz.]


Post a Comment

<< Home