Saturday, April 15, 2006

What's a patent troll?

Phosita asks questions about patent trolls:

Must a patent owner eschew commercialization of the claimed invention to qualify as a troll?

Are you a troll before you sue someone who has commercialized the claimed invention? Or are you magically deemed a troll once you seek to enforce your patent? Are preliminary licensing negotiations enough to earn the moniker, or must you actually file suit?

Can you be a troll on the day a patent issues only later to earn the right to shed the term, perhaps when you start commercializing the invention?

Can an inventor be a troll? Or is there some sort of requirement that the patent owner acquired the patent from the inventor or some other previous owner?

Is it enough if that acquisition was part of an ordinary business transaction, or must it have been through some sort of "fire sale" or bankruptcy proceeding, as some have suggested?

IPBiz has been collecting statements about trolls. Some of them are as follows:

about ebay case

from Science Daily:

At the crux of the argument is how to curb so-called patent trolls -- firms that do not invent or manufacture, but who have made businesses out of acquiring patent rights and then suing other companies for patent infringement. Companies fear such lawsuits because they can result in a court injunction that forces them to stop selling a product with a patented component.

law review article discussing trolls

Donald Chisum discussing trolls

Hadzima of MIT discussing trolls:

Joseph G. Hadzima Jr., a senior lecturer at the Massachusetts Institute of Technology who specializes in intellectual property issues, said: ''You're going to see more of these cases, and they are going to get worse. You've got more and more of what we call 'patent trolls' that go and acquire IP just for the purpose of suing people."

tech companies dreaming about trolls:

Large technology companies have lauded the bill as the best way to eliminate "patent trolls," companies that file for patents simply so they can sue others for infringement.

Ross Perot as a troll:

The practice of acquiring intellectual property for profit, also called patent trolling [?], has been around for some time. However, this is the first time that a prominent investor would throw so much money in the game.

Markey on trolls:

Ms Markey defines a patent troll as a company that make an arguably illegitimate business of snapping up intellectual property – often from the ashes of failed companies – and making patent applications [?, more typically they take issued patents] without actually advancing the technology. Rather, the troll's sole purpose is to sue any infringers and reap the rewards of a settlement. [Was Kodak a troll as to Sun?]

AP on trolls:

more dreaming by tech industry of trolls:

The high-tech industry calls them "patent trolls" - people who get patents for products they never plan to make, just so they can sue for infringement if a company does turn out something similar.


Alan Murray of the Wall Street Journal: In the business world, the new villains are "patent trolls." The term was coined five years ago by Peter Detkin, then head of litigation for Intel Corp., to vilify companies "that try to make a lot of money off a patent that they are not practicing and have no intention of practicing and in most cases never practiced."

But patent trolls are getting a bad rap. For one thing, most U.S. research universities fit Detkin’s definition cited above. Does anyone think Stanford University deserves less patent protection than, say, Microsoft, because it doesn’t make or sell products?

Moreover, Detkin himself is now managing director of Intellectual Ventures, which also fits that definition of a troll. Founded by former Microsoft chief technologist Nathan Myhrvold, Intellectual Ventures is an "invention company" that both conceives and patents its own inventions, and acquires patents from others.

Myhrvold, an outcast among his tech colleagues on this topic, argues there is no reason a company should be given less protection under the law simply because it chooses not to commercialize its patents.

After all, Thomas Edison, who nabbed more than 1,000 patents, didn’t manufacture his inventions. [IPBiz: as noted before, this depends on what one means by manufacture.] Why should modern-day Edisons be penalized for selling their inventions to others, who have the legal infrastructure necessary to enforce them?

**LA Times editorial (23 March 06):

The [patent reform] activity reflects a growing sense in Washington that the patent system has lost its moorings. That's due in part to rapidly changing technologies that prompt patent holders to make novel and unanticipated claims. But it also reflects the nature of patents and intellectual property generally. With a plot of land or a string of pearls, it's easy to tell where one person's property ends and another's begins. With something as abstract as an invention, however, those lines are fuzzy and likely to shift over time.


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