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Encyclopedia > Patent troll

Patent troll is a pejorative term used for a person or company that enforces its patents against one or more alleged infringers in a matter considered unduly aggressive or opportunistic (see List of patent trolls for examples). Image File history File links Broom_icon. ... The examples and perspective in this article or section may not represent a worldwide view. ... List of patent trolls is a representative list of people and companies who have been been characterized by the media as patent trolls. ...

Contents

Definition and etymology

"Patent troll" is a controversial neologism, susceptible to multiple definitions. Among them is a party that: A neologism (Greek νεολογισμός [neologismos], from νέος [neos] new + λόγος [logos] word, speech, discourse + suffix -ισμός [-ismos] -ism) is a word, term, or phrase which has been recently created (coined) — often to apply to new concepts, to synthesize pre-existing concepts, or to make older terminology sound more contemporary. ...

  • "Purchases a patent, often from a bankrupt firm, and then sues another company by claiming that one of its products infringes on the purchased patent;"[1].
  • Enforces patents against purported infringers without itself intending to manufacture the patented product or supply the patented service;[2][3]
  • Enforces patents but has no manufacturing or research base;[4] or
  • Focuses its efforts solely on enforcing patent rights.[5]

The term was used as early as 1993 to describe companies that file aggressive patent lawsuits.[1] It was popularized in 2001 by Peter Detkin, former assistant general counsel of Intel,[6] who applied it to entities that purchase patents at low prices from inventors, rather than inventing or actively developing a technology themselves, then broadly assert the patents across an industry to encourage settlements.[7] Patent trolls may buy patents cheaply from entities not actively seeking to enforce them. For example, a company may purchase hundreds of patents from a technology company forced by bankruptcy to auction its patents.[8] By another account, patent trolls stake out technologies they have not yet developed then wait for independent inventors to create and market the products, suing only after the newcomers are locked into the technology. This practice is criticized as rent seeking behavior.[9] Notice of closure stuck on the door of a computer store the day after its parent company, Granville Technology Group Ltd, declared bankruptcy (strictly, put into administration - see text) in the UK. Bankruptcy is a legally declared inability or impairment of ability of an individual or organizations to pay their... It has been suggested that civil trial be merged into this article or section. ... Peter Detkin is a managing partner for Intellectual Ventures. ... A General Counsel is the chief lawyer of a legal department, usually in a corporation or government department. ... Intel Corporation (NASDAQ: INTC, SEHK: 4335), founded in 1968 as Integrated Electronics Corporation, is an American multinational corporation that is best known for designing and manufacturing microprocessors and specialized integrated circuits. ... In patent law, an inventor is the person, or persons in United States patent law, who contribute to the claims of a patentable invention. ... For other uses of settlement, including legal uses, see Settlement. ... Notice of closure stuck on the door of a computer store the day after its parent company, Granville Technology Group Ltd, declared bankruptcy (strictly, put into administration - see text) in the UK. Bankruptcy is a legally declared inability or impairment of ability of an individual or organizations to pay their... This article needs additional references or sources for verification. ... The phenomenon of rent-seeking was first identified in connection with monopolies by Gordon Tullock, in a paper in 1967. ...


At core, the criticism of patent trolls is that "they are in a position to negotiate licensing fees that are grossly out of alignment with their contribution to the alleged infringer’s product or service",[10] not their non-practising status or the possible weakness of their patent claims. The risk of paying high prices for after-the-fact licensing of patents they were not aware of, and the costs for extra vigilance for competing patents that might have issued, in turn increases the costs and risks of manufacturing. To license or grant license is to give permission. ...


Mechanics of patent trolling

Patent trolls operate much like any other company that is protecting and aggressively exploiting a patent portfolio. However, their focus is on obtaining additional money from existing uses, not from seeking out new applications for the technology. They monitor the market for possibly infringing technologies by watching popular products, news coverage and analysis. They also review published patent applications for signs that another company is developing infringing technology, possibly unaware of their own patents. They then develop a plan for how to proceed. They may start by suing a particularly vulnerable company that has much to lose, or little money to defend itself, hoping that an early victory or settlement will establish a precedent to encourage other peer companies to acquiesce to licenses. Alternately they may attack an entire industry at once, hoping to overwhelm it. A patent portfolio is a collection of patents filed and owned by a single inventor or corporation that may be related or unrelated. ... A patent application is a request pending at a patent office for the grant of a patent for the invention described and claimed by that application. ...


An individual case often begins with a perfunctory infringement complaint[11], or even a mere threat of suit, which is often enough to encourage settlement for the nuisance or threat value of the suit by purchasing a license to the patent. In the United States, suits are often brought in United States District Court for the Eastern District of Texas, known for favoring plaintiffs and for expertise in patent suits.[12] The cost of defending such a suit as of 2004 is typically $1 million or more before trial, and $2.5 million for a complete defense, even if successful.[11]. Because the costs and risks are high, defendants may settle even non-meritorious suits they consider frivolous for several hundred thousand dollars.[11] In general use, a complaint is an expression of displeasure, such as poor service at a store, or from a local government, for example. ... A threat is a declaration of intention to inflict punishment or harm on another. ... The United States District Court for the Eastern District of Texas is the Federal district court with jurisdiction over the eastern part of Texas and is a part of the Fifth Circuit. ... A plaintiff, also known as a claimant or complainer, is the party who initiates a lawsuit (also known as an action) before a court. ... A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute. ... In courts, a defense or claim is termed frivolous if it is presented in spite of the fact that both the party and the partys attorney knew that it had no merit and it did not argue for a reasonable extension or reinterpretation of the law or no underlying...


The uncertainty and upredictability of the outcome of jury trials also encourages settlement.[13]. If it wins, the plaintiff is entitled as damages an award of at least a "reasonable" royalty determined according to the norms of the field of the patented invention.[14] It has been suggested that this article or section be merged with Jury. ... In law, damages refers to the money paid or awarded to a claimant (as it is known in the UK) or plaintiff (in the US) following their successful claim in a civil action. ... Royalty may refer to either: the royal family of a country with a monarchy royalties the payment made to the owner of a copyright, patent, or trademark, for the use thereof This is a disambiguation page — a navigational aid which lists other pages that might otherwise share the same...


Patent trolls are at a disadvantage in at least two ways. First, patent owners who make and sell their invention are entitled to awards of lost profits. However, patent trolls, being non-manufacturers, typically do not qualify. Further, owners are entitled to injunctions barring further manufacture, use, or sale of technologies that infringe their patents. However, in eBay Inc. v. MercExchange, L.L.C., a case over Ebay's "buy it now" feature, the Supreme Court recently limited the availability of injunctive relief for smaller patent-holders.[15] Holding Lower courts erred in issuing a permanent injunction against eBay by failing to apply the four-factor test for disputes arising under the Patent Act. ... eBay headquarters in San Jose eBay North First Street satellite office campus (home to PayPal) eBay Inc. ...


Defenses

Some believe patent trolls have an unfair advantage over manufacturers since they are relatively immune to the typical defensive tactic large entities use against small patent plaintiffs.[11] Among the common techniques rendered ineffective is going on the offensive with counterclaims that accuse the patent plaintiff of infringing patents owned by the defendant. In normal circumstances the mutual threat often leads the parties to arrive at a mutually beneficial cross-licensing arrangement. However, it does not work on patent trolls who, without manufacturing or technology of their own, are unlikely to be infringers themselves. Another common defense, a "scorched earth" defense designed to drive up litigation costs, is equally ineffective because patent trolls plan for and have the finances to fully litigate a case.[11] In fact, some are able to draw on hedge funds and institutional investors to finance their patent cases.[16]. A Counterclaim is made by the defendant to a civil procedure, in a main actions against the plaintiff or against the plaintiff and other persons. ... In patent law, a cross-licensing agreement is an agreement according to which two parties grant a license to each other for the exploitation of the subject-matter claimed in patents. ... A scorched earth policy is a military tactic which involves destroying anything that might be useful to the enemy while advancing through or withdrawing from an area. ... A hedge fund is an investment fund charging a performance fee and typically open to only a limited range of investors. ... An institutional investor is an investor who is an institution like a bank, insurance fund, retirement fund, or mutual fund manager. ...


Substantial companies that attempt over-reaching patent litigation are subject to losing their patent rights to a defensive claim of patent misuse. However, defendants find it difficult to charge patent trolls with misuse because the antitrust violations typically involved require significant market power on the part of the patent holder.[17] Nevertheless, manufacturers do use various tactics to limit their exposure to patent trolls. Most have broader uses as well for defending their technologies against competitors. These include: Patent misuse in the United States, is an affirmative defense used in patent litigation after the defendant has been found infringed a patent. ... This article is about anti-competitive business behavior. ...

  • Patent watch. Companies routinely monitor new patents and patent applications, most of which are published, to determine if any are relevant to their business activities.
Early Woodward light bulb patent purchased by Thomas Edison to preclude trolling
Early Woodward light bulb patent purchased by Thomas Edison to preclude trolling
  • Clearance search. A standard practice is to perform a clearance search for patents or pending patent applications that cover important features of a potential product, before its initial development or commercial introduction. For example, a search by Thomas Edison uncovered a prior patent by two Canadian inventors, Henry Woodward and Mathew Evans for carbon filament a in non-oxidizing environment, (U.S. Patent 181,613 ), the type of light bulb Edison wanted to develop. Edison bought the patent for for US$5,000 ($100,000 in 2006 US currency) to eliminate the possibility of a later challenge by Woodward and Evans.
  • Opposition proceeding. In Europe, third parties may conduct a Opposition procedure before the European Patent Office| proceeding]] to oppose overly broad patents. There is a more limited process in the United States, known as a reexamination. As an example, Research in Motion, filed reexaminations against broad NTP, Inc. patents related to BlackBerry technology.
  • Litigation. Whereas some companies acquiesce to a troll's demands, others go on the offensive by challenging the patents themselves, for example by finding prior art that invalidates their patentability. They may also broadly challenge whether the technology in question is infringing, or attempt to show patent misuse. If successful, such a defense not only wins the case at hand but destroys the patent troll's underlying ability to sue. Knowing this, the patent troll may back down or lessen its demands.
  • Early settlement. An early settlement is often far less expensive than litigation costs and later settlement values.
  • Patent infringement insurance. Insurance is available to help protect companies from inadvertently infringing a third party's patents.

In patent law, a patent watch is a process for monitoring newly issued patents on a periodic basis to see if any of these patents might be of interest. ... Image File history File links Download high resolution version (693x644, 41 KB) Summary Figure 3 from US patent 181,613, Improvement in Electric Lights, by Henry Woodward Licensing File history Legend: (cur) = this is the current file, (del) = delete this old version, (rev) = revert to this old version. ... Image File history File links Download high resolution version (693x644, 41 KB) Summary Figure 3 from US patent 181,613, Improvement in Electric Lights, by Henry Woodward Licensing File history Legend: (cur) = this is the current file, (del) = delete this old version, (rev) = revert to this old version. ... In patent law, a clearance search is a search done on issued patents or on pending patent applications to determine if a product or process infringes any of the claims of the issued patents or pending patent applications. ... Thomas Alva Edison (February 11, 1847 – October 18, 1931) was an American inventor and businessman who developed many devices which greatly influenced life around the world, including the phonograph and a long lasting light bulb. ... Canadian Patent application Henry Woodward(The true inventor of the light bulb) was an early pioneer in the development of the incandescent lamp. ... A portion of the 1874 actual patent application. ... An opposition proceeding is an administrative process available under the patent and trademark law of most juridictions which allows third parties to dispute the validity of a granted patent or trademark. ... The opposition procedure before the European Patent Office (EPO) is a post-grant inter partes procedure intended to allow any European patent to be centrally opposed if it was wrongly granted. ... In United States patent law, a reexamination is a process whereby a third party or inventor can have their patent application reexamined by a patent examiner to verify that it is valid. ... Research In Motion Limited (RIM) (TSX: RIM, NASDAQ: RIMM) is a Canadian wireless device company. ... NTP, Inc. ... The BlackBerry is a wireless handheld device introduced in 1999 which supports push e-mail, mobile telephone, text messaging, internet faxing, web browsing and other wireless information services. ... A lawsuit is a civil action brought before a court in order to recover a right, obtain damages for an injury, obtain an injunction to prevent an injury, or obtain a declaratory judgment to prevent future legal disputes. ... This article or section cites very few or no references or sources. ... Within the context of a national or multilateral body of law, an invention is patentable if it meets the relevant legal conditions to be granted a patent. ... In law there are two main meanings of the word settlement. ... Patent infringement insurance is an insurance policy provided by one or more insurance companies to protect either an inventor or a third party from the risks of inadvertently infringing a patent. ...

Criticism of term

  • Vagueness. The term is criticized as vague and its use as subjective.[9]
  • Overbreadth. Defining trolls broadly as patent holders that do not practice or promote the patented invention would include holding companies, most US universities and many individual inventors, for example, Thomas Edison, in the definition.[18] Large businesses typically have separate licensing departments, and may have separate patent holding companies, that are distinct from their research and development operations.
  • Misapplied. Accusations of trolling may be conflated with broader criticisms of the patent office, or of patent rights in general, by those who claim the patent system is "broken",[19] when in fact problems like poor quality patents, and patent thickets, are issues distinct form patent trolling.[18] Critics of the term argue that it is misguided to use it to criticize the patent system, because there are already mechanisms in place to restrain troll-like behavior. The two primary factors are the limited patent term and the obligation to disclose.[20]
  • Political agenda. The term is used in a partisan matter by companies seeking to gain benefit at trial or by public relations by accusing competitors of being trolls, and also who objecting to or want to change the current patent laws on equitable grounds[21]Former Microsoft Chief Technology Officer Nathan Myhrvold alleged that use of the expression "patent troll" is primarily a public relations tactic that large corporations use to intimidate individual inventors in an effort to tilt the playing field in their favor.[22] Parties that themselves actively enforce and license patents they do not practice, may criticize other companies for trolling when it suits their interest to do so. [23]
  • Legality of conduct. Private ownership of property generally, and intellectual property in particular, is a fundamental right that cannot be overturned in the United States without raising equal protection concerns under the Constitution.[24]. Under US law patent owners need not commercialize the invention to enforce their patents. They may charge any amount they wish as a royalty to others in exchange for a right to make, use or sell the patented invention, or to not use or license the patent at all (UK and European patent law, by contrast, contains provisions for compulsory licenses, something that ameliorates patent trolling). Moreover, the owner of a patent need not be the inventor. Patents are legally transferrable in the sense that they can be bought, sold and licensed to entities other than the inventor(s).[8]
  • Beneficial effects. Some claim that patent trolls benefit the patent system and the economy, suggesting the more neutral term "patent dealer", or simply calling them what they are, for example a licensor, patent pool or a patent holding company. Patent licensing is considered procompetitive because it encourages investment in bringing new products to market.[25] By creating a secondary market for patents, patent trolls make the ownership of patents more liquid, thereby creating incentives to innovate and patent.[26][18]. Aggregating patents in the hands of specialized licensing companies facilitates access to technology by more efficiently organizing ownership of patent rights.[27][28]

Ambiguity is one way in which the meanings of words and phrases can be unclear, but there is another way, which is different from ambiguity: vagueness. ... Patent holding companies are companies set up to administer and consolidate patents. ... Thomas Alva Edison (February 11, 1847 – October 18, 1931) was an American inventor and businessman who developed many devices which greatly influenced life around the world, including the phonograph and a long lasting light bulb. ... The political agenda is the issues and policies set out by either the executive or cabinet in government which dictate existing and near-future political news and debate. ... Look up trial in Wiktionary, the free dictionary. ... Public relations (PR): Building sustainable relations with all publics in order to create a postive brand image. ... The Court of Chancery, London, early 19th century This article is about the concept of equity in the jurisprudence of common law countries. ... Microsoft Corporation, (NASDAQ: MSFT, HKSE: 4338) is a multinational computer technology corporation with global annual revenue of US$44. ... Nathan Myhrvold, formerly Chief Technology Officer at Microsoft, is founder of Intellectual Ventures. ... A corporation (usually known in the United Kingdom and Ireland as a company) is a legal entity (distinct from a natural person) that often has similar rights in law to those of a Civil law systems may refer to corporations as moral persons; they may also go by the name... This article or section does not cite any references or sources. ... For the 2006 film, see Intellectual Property (film). ... The Equal Protection Clause is a part of the Fourteenth Amendment to the United States Constitution, providing that no state shall make or enforce any law which shall. ... An invention is an object, process, or technique which displays an element of novelty. ... A compulsory license is a license to use a patent, copyright, or other exclusive right that a government forces the holder to grant to others. ... As objects of intellectual property or intangible assets, patents and patent applications can be freely transferred. ... In intellectual property (IP) law, a patent pool is a consortium of at least two companies agreeing to cross-license patents and other IP rights relating to a particular technology. ... Patent holding companies are companies set up to administer and consolidate patents. ... Competitiveness is a comparative concept of the ability and performance of a firm, sub-sector or country to sell and supply goods and/or services in a given market. ... Invest redirects here. ... Look up Market in Wiktionary, the free dictionary. ... The secondary market is the financial market for trading of securities that have already been issued in an initial private or public offering. ...

Miscellaneous

  • Some claim that software patents are more susceptible to patent trolling because patent examiners find it difficult to determine whether a software patent is truly innovative, leading to many overly broad patents of dubious validity, that are often purchased inexpensively then used to pursue settlements against large companies(SPI).[29]

Software patent does not have a universally accepted definition. ...

References

  1. ^ a b "patent troll". wordspy. Retrieved on 2007-07-26.
  2. ^ Alexander Poltorak. On 'Patent Trolls' and Injunctive Relief., ipfrontline.com, May 12, 2006
  3. ^ EPO Scenarios for the Future, 2005, Glossary]. European Patent Office. Retrieved on 2007-07-27.
  4. ^ Morag Macdonald, Beware of the troll. The Lawyer (September 26, 2005). Retrieved on 2007-07-27.
  5. ^ Danielle Williams and Steven Gardner (April 3, 2006). "Basic Framework for Effective Responses to Patent Trolls,". 
  6. ^ Brenda Sandburg. "You may not have a choice; Trolling for Dollars", The Recorder, July 30, 2001. 
  7. ^ R.G. (December 5, 2005). Has the Enemy of Patent Trolls Become One. Ziff Davis. Retrieved on 2007-07-27.
  8. ^ a b Michael Kanellos (March 3, 2006). Patent auctions: Lawyer's dream or way of the future?. zdnet. Retrieved on 2007-07-27.
  9. ^ a b Dennis Crouch (May 12, 2006). Patently-O. Retrieved on 2007-07-26.
  10. ^ Matthew Sag and Kurt W. Rohde, Patent Reform and Differential Impact., Northwestern University, August 21, 2006.
  11. ^ a b c d e Craig Tyler (September 24, 2004). "Patent Pirates Search For Texas Treasure". Retrieved on 2007-07-27. 
  12. ^ Sam Williams. "A Haven for Patent Pirates", Technology Review, February 6, 2006. Retrieved on 2007-07-07. 
  13. ^ Justin Watts. "Waiting for Godot", Patent World, June 2007. 
  14. ^ US patent law, 35 USC 284.
  15. ^ Jessica Holzer. "Supreme Court Buries Patent Trolls", Forbes.com. Retrieved on 2007-07-27. 
  16. ^ Nathan Vardi. "Patent Pirates", Forbes Magazine, May 7, 2007. Retrieved on 2007-07-27. 
  17. ^ Jose Cortina (July 26, 2006). Antitrust Considerations In Patent Enforcement: A Patent Doesn’t Mean Grant Of Monopoly Power. Local Tech Wire. Retrieved on 2007-07-27.
  18. ^ a b c JAMES F. MCDONOUGH III (2007). The Myth of the Patent Troll: An Alternative View of the Function of Patent Dealers in an Idea Economy. Emory Law Journal. Retrieved on 2007-07-27.
  19. ^ Judy Newman (May 9, 2006). Innovators fear the patent trolls.
  20. ^ The Case for Abandoning the Term 'Patent Troll'. Retrieved on 2007-07-27.
  21. ^ Caroline Horton Rockafellow. Examining Patent Troll Debate: Should They Be An Endangered Species?. Local Tech Wire. Retrieved on 2007-07-27.
  22. ^ Nathan Myhrvold. Inventors Have Rights, Too!. Wall Street Journal. Retrieved on 2007-07-27.
  23. ^ Stefanie Olsen (August 9, 2004). Google, Yahoo bury the legal hatchet. CNET. Retrieved on 2007-07-27.
  24. ^ Michael Smith (October 11, 2006). Patent Pirates only exist in Neverland. Texas Lawyer. Retrieved on 2007-07-27., Texas Lawyer, November 11,2004
  25. ^ US Department of Justice (April 5, 1995). Antitrust Guidelines for the Licensing of Intellectual Property. Retrieved on 2007-07-27.
  26. ^ Don Clark. "Inventors See Promise In Large-Scale Public Patent Auctions", the Wall Street Journal Online, March 9, 2006. Retrieved on 2007-07-27. 
  27. ^ IPFrontline Staff. "Making Innovation Pay", ipFrontline.com, March 11, 2006. Retrieved on 2007-07-27. 
  28. ^ Nicholas Varchaver,Who's afraid of Nathan Myhrvold?, Fortune Magazine, June 26, 2006
  29. ^ Bernard A. Galler (1997). Some Interesting Examples of Prior Art for Software-Related Patents from Older Non-patent literature. Retrieved on 7 September 2005.

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Other sources

  • Maggie Shiels, Technology industry hits out at "patent trolls", BBC News, June 2, 2004, [1]
  • Lorraine Woellert, A Patent War Is Breaking Out On The Hill, Business Week, July, 2005, [2]
  • Joe Beyers, Rise of the patent trolls, CNET News.com, October 12, 2005 [3]
  • Raymond P. Niro, The Patent Troll Myth, Professional Inventors Alliance web site, August 4, 2005 [4]
  • Raymond P. Niro, Who is Really Undermining the Patent System – “Patent Trolls” or Congress?, 6 J. Marshall Rev. Intell. Prop. L. 185 (2007).
  • Simon Phipps, On Cane Toads, Fire Ants and Patents, SunMink, February 13, 2005, [5]
  • Bakos, Tom, "Patent Trolls", Insurance IP Bulletin, Vol. 2005.3, June 2005 [6]
  • Ferrill, Elizabeth, "Patent Investment Trusts: Let's Build a PIT to Catch the Patent Trolls", N.C. J. of Law & Tech., Vol 6, Iss. 2: Spring 2005.[7].
  • Kurt Leyendecker, "Patent Trolls!", Control, Protect & Leverage, A Leyendecker & Lemire Blog, March 14, 2006. [8]
  • Steven Rubin. "Hooray for the Patent Troll!", IEEE Spectrum, March, 2007. 

BBC News is the department within the BBC responsible for the corporations news-gathering and production of news programmes on BBC television, radio and online. ... BusinessWeek is a business magazine published by McGraw-Hill. ... CNET Networks Inc. ... IEEE Spectrum is a magazine edited by the Institute of Electrical and Electronics Engineers. ...

See also


  Results from FactBites:
 
The Case for Abandoning the Term "Patent Troll" (3066 words)
Quite simply, patent trolls, like the supernatural creatures from Scandinavia from which their name is derived, are a fiction, and are far less of a threat than others who abuse the patent system.
Moreover, considering that a patent’s value depends on the willingness of the patentee to enforce it by excluding others, regardless of whether the patentee is practicing the patent, it is clear that the actual practice standard completely misunderstands and ignores the fundamental attributes of the patent system.
Proponents of the term “patent troll” frequently rely upon colorful anecdotes to support their allegations that the problem of frivolous patent lawsuits is rampant, and that trolls are a serious threat to the patent system and the U.S. economy.
PATPRESS.COM: Patent Law - Patent Troll (521 words)
Patent troll (also rarely "patent pirate") is a pejorative and controversial phrase coined by former Intel assistant general counsel Peter Detkin in 2001 to describe an individual or company with a patent portfolio containing important, fundamental software patents that it never intended to commercialize.
A patent attorney is an attorney who has the specialized qualifications necessary for representing clients in obtaining patents and acting in all matters and procedures relating to patent law and practice, such as filing...
Patent troll is a pejorative and controversial phrase coined by former Intel assistant general counsel Peter Detkin in 2001 to describe an individual or company with a patent portfolio containing important, fundamental...
  More results at FactBites »

 
 

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