For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

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Thursday, 27 April 2006

BE KIND TO THAT TROLL ...


Be kind to that patent troll, he might just be an inventor

The IPKat has just had a sudden thought, sparked off by reading Duncan Bucknell's piece on strategic responses to patent trolls. The sudden bolt of lightning is this: we've got a major problem of discrimination right now, caused by people being too 'trollist'.

Every entity that owns and licenses patents, without actually making anything, is capable of falling within the class of entities called "patent trolls". The concept is a brilliant one - we all know that trolls are evil creatures from Nordic folklore who control essential facilities and make demands of those who would use them. The word "troll" in English also resonates with "toll", a tax levied on an unwilling payee. What better way to stigmatise a person who charges rent for the use of a patent than to call him a patent troll?

The same phenomenon appears with the unpopular word "landlord", suggesting some powerful baron who will batter down doors and set dogs upon uncooperative tenants, exercising the jus primae noctis against their daughters (and sons, the Kat supposes, this being the 21st century). But the landlord (or landlady) is more likely to be an elderly pensioner, letting out a spare room for a bit of much-needed cash than a propertied demon/racketeer.

Left: some trolls can be quite cuddly - so let's not be trollist

What the IPKat is getting to is this: the commercial relationship of patent licensee to licensor should be both judged and regulated by clear and fair legal criteria rather than by name-calling and stigmatisation. The small-time inventor who creates and patents a small-time inventor but lacks the resources to make it, the university research team whose academic brilliance extends the boundaries of science but does not extend to the arts of manufacture and marketing, the pension fund that invests in intellectual property rather than land or share equities - are these all trolls?

What's more, if you're going to be a nasty, evil troll, it's silly using patents to hit other people over the head with. For one thing, their term is limited and highly vulnerable to challenge for invalidity; for another, they're expensive even for trolls to litigate. Also, abuses of monopoly power are subject to such devilish devices as compulsory licence applications and competition laws. Finally, people have been known to invent around inconvenient patents.

Merpel adds: it's strange, but a company that has US or European patents, but manufactures under them by outsourcing to a country where sweat-shop labour is dirt-cheap and legal regulation of labour and the environment is all but non-existent, seems to get far less criticism than a business that creates or buys patents - presumably from people who willingly sell them - and then charges for their use.

Right: never a great speller, Merpel struggles to grasp the difference between 'sweat shops' and 'sweet shops' ...

To conclude, no-one wants to see patents lying idle, or being used as tools of extortion - but let's retain a sense of proportion when debating the merits of patent ownership and exploitation and not let the use of emotive terms distract us from the real issues.

8 comments:

John H said...

I think the term "patent troll" probably owes more to the online term "trolling". In online discourse, a "troll" is someone who makes a provocative contribution to a discussion, not to advance the discussion, but purely to generate a heated response from other participants. For example, someone goes onto an MS Windows discussion site and posts a comment saying, "Windows is t3h lame!!! Use Linux!!!!!"

Apparently the term comes from fishing, rather than from the legendary creatures that live under bridges - a point that should be of interest to the IPKat, given your strapline!

The point about "patent trolls" is then the sense that they are people who have done absolutely nothing to stimulate innovation or generate new ideas themselves, but are instead opportunists who hoover up otherwise "redundant" patents and use them to crowbar money out of other companies. (Of course, they have probably paid the actual inventor money that the inventor would not otherwise have received, but as you point out that side of it is often neglected in discussions of this phenomenon.)

Underlying all this is a loss of confidence in the patent system, particularly the US patent system. There is a widespread sense that people in the US are being granted patents that are wholly unjustifiable and that have a wholly disproportionate impact on other users of technology (the Creative Zen "hierarchical menu" patent springs to mind as a topical example). Thus there is a sense that "patent trolls" are getting a windfall that is unfair and unjustifiable, and their "victims" are suffering because of fundamental flaws in the system - plus, the number of bad patents out there means almost any business, particularly in the IT field, is at risk of such a claim popping up at some point.

Finally, you comment that "no-one wants to see patents lying idle" - however, I think it's rather that no-one wants to see new innovations lying idle, and the most controversial of these cases seem to have involved situations where a technology was being actively exploited, to the joy of millions (OK, perhaps I exaggerate a little...), and then that is threatened by a patent that has previously been "lying idle" but is then suddenly revived by a new owner, whether or not that owner is an ugly creature that lives under a bridge...

Jeremy said...

Thanks for your entirely temperate and reasonable response. I only wish all debate was conducted like that (except when it's my turn to speak ...)

I wasn't aware of the online term "trolling" and wonder how many of the IPKat's legal, rather than techie, readers knew of it.

Guy said...

The latest issue of Private Eye, by chance, has an excellent illustration of a "Troll Bridge".

John H said...

Jeremy: You're very kind. ;-)

Do I gather that a specific incident lay behind your post?

Guy: yes, that cartoon was excellent. I'm sure the CEO of Research in Motion would be delighted to have a framed copy on his desk...

Jeremy said...

John H - the reason I posted my comment was because it suddenly occurred to me that the words "patent troll" might actually reveal more about the attitude of the person using the words than about the entity to which he directs those words. It suddenly got me worried as to whether our choice of vocabulary can impede the solution of the problems we set out to solve.

Guy - I'm oscillating between Private Eye and The Onion again. Whenever will i find time to read the law ...

Ray said...

Our choice of vocabulary does indeed fundamentally frame the shape of the debate about intellectual property. 'Piracy', for example, is something which happens on the high seas, not when copyright is infringed. Jessica Litman covers the whole area of intellectual property rhetoric really well in her book, Digital Copyright. She says "If you're dissatisfied with the way the spoils are getting divided, one approach is to change the rhetoric."

Anonymous said...

Sadly I knew what an online troll is - though I hadn't put the two together. Not all US patent litigation involves a troll - at least I don't think that this one does!
http://news.com.com/2100-1006_3-6064340.html

Does "cybersquatter" also fit into the perjorative language category?

Bruce Berman said...

I think there are differences in patent asserters. The villains, “true” trolls, if you wish, are the ones who are asserting worthless patents knowing full well it will require anywhere from $500K to $1m in discovery costs to have their patent invalidated. (Of course, no troll-calling defendant would have such dubious rights in its own vast portfolio.) A company would be foolish not to want to resolve a potentially costly dispute for only $200K or $300K. Even though it's a shakedown the response is a business decsion. My question is how did business get to this point? Why is it so costly to prove obvious invalidity? Are the patent “thickets” promoted, consciously or otherwise, by large portfolio owners coming back to haunt them? The emphasis should not be only on why the patent office issues this trash in the first place, but why vetting them has become so painful? Until trolls came along, costly assertion benefitted many large portfolio owners. Now they're not so sure. Disputes are inevitable, how they get resolved is not.

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