{"id":1076,"date":"2015-03-26T19:15:28","date_gmt":"2015-03-26T19:15:28","guid":{"rendered":"http:\/\/blogs.nd.edu\/patentlaw\/?p=1076"},"modified":"2015-03-26T19:15:28","modified_gmt":"2015-03-26T19:15:28","slug":"patent-trolls","status":"publish","type":"post","link":"https:\/\/sites.nd.edu\/patentlaw\/2015\/03\/26\/patent-trolls\/","title":{"rendered":"Patent trolls"},"content":{"rendered":"
\"Just<\/a>

Just your friendly neighborhood patent troll. Beautiful image courtesy of WIPO illustrator, Bob MacNeil<\/p><\/div>\n

A post from our student blogger Roberto<\/em><\/p>\n

Staying up to date on intellectual property news is tough.\u00a0 In a field centered on the advancement of technology it\u2019s no surprise that there are things always going on.\u00a0 Doing a quick search on Google for \u201cIntellectual Property\u201d returned more than 15,500,000 results in the \u201cnews\u201d category alone.\u00a0 Lately, one of the most trendy and talked about topics is \u201cpatent trolls\u201d, which are also known as \u201cnon-practicing entities\u201d (NPEs) because of their tendency to never actually produce a product covered by the patent, and \u201cpatent assertion entities\u201d (PAEs).\u00a0 The term \u201ctroll\u201d is pretty descriptive and, even without any further understanding of the concept, one immediately conjures up a negative image in their head.\u00a0 For instance, some may imagine a mammoth forest green creature with warts the size of golf balls covering them from head to toe whom is wielding a massive sand barbaric wooden club.\u00a0 Taken in a patent law context, that creature with warts is often a corporation swinging around the weight of its potentially damaging patent portfolio.\u00a0 In many instances, patent trolls are corporations that acquire and own patents simply for the purpose of chasing down potential \u201cinfringers\u201d and doing all they can to get the most money possible out of them.\u00a0 At first, many of these trolls send the infringing entity a letter asking for a reasonable royalty to continue doing whatever it is the troll believes is infringing their patent.\u00a0 Now, either the \u201cinfringing\u201d company gives in to the troll\u2019s demands or they do nothing and wait for the troll to potentially file a lawsuit against them.\u00a0 Often times after not getting their royalty, the trolls file lawsuits which, in the end, cost companies on average around $2M<\/a>.\u00a0 While some large corporations can easily absorb that cost many small startups cannot and are permanently crippled as a result.<\/p>\n

While patent trolls have existed for a long time, by some accounts since the turn of the 20th<\/sup> century<\/a>, there has been a recent push to reform current laws to combat patent trolls.\u00a0 On March 18, 2015, there was a Senate Judiciary Committee hearing on patent reform titled The Impact of Abusive Patent Litigation Practices on the American Economy<\/em><\/a>.\u00a0 At this hearing a large amount of focus was placed on finding ways to eliminate trolls from existence.\u00a0 The troll destroyers, as I have termed them, argue that patent trolls have cost American businesses a lot of money.\u00a0 Further, many fear that patent trolls could attack vulnerable small startups and force them out of business when they don\u2019t have the funds to enter into a lawsuit or pay the royalties demanded by the trolls.\u00a0 It is no surprise that over the past four years<\/a> ten bills that attempt to combat patent trolls have appeared before Congress without any of them getting through.\u00a0 These bills have not only met a tough audience, much of congress is not particularly well versed in patent law or related issues, but also has met a battalion of resilient and powerful patent troll lobbyists.\u00a0 Many of these past reforms focused on increasing the penalties on trolls for losing patent infringement lawsuits and the same plan of attack is still being pursued by some Senators today<\/a>.<\/p>\n

Given all of the hatred on the patent trolls, by people like the troll destroyers, it makes sense to ask yourself how anyone could possibly be in favor of patent trolls.\u00a0 Well take a journey with me as I transform you into just that, a patent troll abolitionist and war chief.\u00a0 Imagine yourself coming up with a great idea for a brand new windshield for your car.\u00a0 This windshield is amazing, it\u2019s hydrophobic causing rain and water bead up and roll off it, it\u2019s internally heated by invisible resistance heating elements that melt snow on contact and prevent ice from forming on it, it has an integrated and invisible photovoltaic cell array that charges the car\u2019s battery, and it attaches to the cars computer to regulate the temperature of the glass so that it never gets fogged up.\u00a0 After developing the product and working with your friendly neighborhood patent agent you are granted a patent on your awesome new windshield.\u00a0 You call all your family members and friends and ask them to pitch in money to help you get a company started.\u00a0 After investing all that time and money you finally get your first sale.\u00a0 Sales over the next few months are slow, and you decide to approach Ford about licensing the windshield from you for use in future vehicles.\u00a0 Much to your surprise, it is almost impossible to figure out who to talk to and how to get them to listen.\u00a0 After pitching your idea to several \u201cVPs\u201d they tell you that they aren\u2019t interested and send you on your way.\u00a0 Discouraged, you decide to continue to try and sell it on your own, figuring that your awesome product would catch on and people would buy them once they saw how great they are.\u00a0 One weekend you are sitting at home watching the commercials during the Packers game when you see it.\u00a0 A commercial for the brand new Ford Raptor, a truck that has a never-before-seen windshield that has all the same features as your prized creation.\u00a0 You are in an utter state of shock.\u00a0 You run to the computer and do a quick online search. \u00a0You immediately notice that the windshield is identical to yours and it is getting all kinds of publicity causing orders for the new truck to go through the roof.<\/p>\n

This is almost identical (minus the awesome windshield idea I came up with) to the stories of many inventors, including a U.S. veteran named Fred Sawyer, whose amazing story can be read here<\/a>.<\/p>\n

What do you do?\u00a0 You could try to bring legal action, but that takes funding you simply don\u2019t have. You would need to have the funding to compete with a mega-corporation that plans to simply out spend you.\u00a0 What is most likely to happen is that you lose out and go out of business.\u00a0 Today, inventors can turn to patent trolls to team up and go after that big corporation using the funding the patent trolls have.\u00a0 Without someone like the patent trolls the small inventors would have no chance at competing in arena where the price of entry is north of $2M.\u00a0\u00a0 Without trolls there would be no way to practically enforce patent rights because of these financial realities.\u00a0 Still, inventors pay a heavy price for partnering with the trolls, often forfeiting 95%<\/a> of their patents value after winning a patent infringement case.\u00a0 Even if the inventors decide to go to battle alone the act of waging war on an all-powerful corporation often earns them the title of \u201cpatent troll\u201d as well.<\/p>\n

So, now that you have seen both sides of the coin, what are we to make of patent trolls as a whole?\u00a0 I believe the term \u201cpatent troll\u201d is misleading and that the trolls are actually divided into two camps.\u00a0 One camp that wants to pillage every possible piece of intellectual property and make as much money as possible through downright exploitation of the system, these are the trolls that (almost) everyone agrees we need to address in some way.\u00a0 The other is the camp of trolls that exist to provide balance and security for the small inventors against the big corporations that they otherwise would have no chance against (included in this camp are the single inventor \u201ctrolls\u201d going at it on their own).\u00a0 Any potential patent reform needs to be wary of these two distinct camps and the effects any legislation would have on this precarious balance of power.\u00a0 Take away too much of the troll\u2019s power and with it goes the security of the single inventor.\u00a0 Figuring out an answer that protects inventors while combating wasteful litigation will be difficult but is necessary to preserve the integrity of our patent system.<\/p>\n","protected":false},"excerpt":{"rendered":"

A post from our student blogger Roberto Staying up to date on intellectual property news is tough.\u00a0 In a field centered on the advancement of technology it\u2019s no surprise that there are things always going on.\u00a0 Doing a quick search … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":649,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[29602],"tags":[29575,49348,29592,49347,29576,49339,29591],"class_list":["post-1076","post","type-post","status-publish","format-standard","hentry","category-student-blog-posts","tag-patent","tag-patent-agent","tag-patent-law","tag-patent-news","tag-patent-office","tag-patent-prosecution","tag-patents"],"_links":{"self":[{"href":"https:\/\/sites.nd.edu\/patentlaw\/wp-json\/wp\/v2\/posts\/1076","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/sites.nd.edu\/patentlaw\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/sites.nd.edu\/patentlaw\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/sites.nd.edu\/patentlaw\/wp-json\/wp\/v2\/users\/649"}],"replies":[{"embeddable":true,"href":"https:\/\/sites.nd.edu\/patentlaw\/wp-json\/wp\/v2\/comments?post=1076"}],"version-history":[{"count":1,"href":"https:\/\/sites.nd.edu\/patentlaw\/wp-json\/wp\/v2\/posts\/1076\/revisions"}],"predecessor-version":[{"id":1077,"href":"https:\/\/sites.nd.edu\/patentlaw\/wp-json\/wp\/v2\/posts\/1076\/revisions\/1077"}],"wp:attachment":[{"href":"https:\/\/sites.nd.edu\/patentlaw\/wp-json\/wp\/v2\/media?parent=1076"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/sites.nd.edu\/patentlaw\/wp-json\/wp\/v2\/categories?post=1076"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/sites.nd.edu\/patentlaw\/wp-json\/wp\/v2\/tags?post=1076"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}