The IP term (thus far) of the millennium: the curious story of the adoption of "patent troll" and "internet trolling"

This Kat devotes substantial (Mrs. Kat says too much) time following the geopolitical challenges of our time. But he seldom loses a good night’s sleep agonizing over them. The same cannot be said about IP matters, especially when they seem to be curious, bordering on the improbable. And what could be more curious, indeed, improbable, than the lexical transformation of the “troll” from being a stock character in Scandinavian mythology into a staple of contemporary IP discourse, not once but twice. This Kat offers a feline reflective.

The mythological character came to be viewed in two quite different forms. As described, in one form, he was “a large, brutish, and dumb creature that resembles a disproportionately giant human,” suggesting for some a distorted cultural memory of Neanderthal humans. In the other, the troll was seen as smaller than the human beings, with “short stubby arms and legs”, whose overall effect was that of an especially ugly creature, “gross-looking” and even “slimy”. Various forms of artistic endeavor—art, music, literature-- have sought to give expression to the troll. Whatever that form, trolls have become part of our collective cultural memory of someone/something--

“which is somewhat peculiar and different, yet hauntingly similar to ourselves... our desire to embrace, yet at the same time fearing, those who are different.”

So how did we get from the mythical troll to its current uses in IP discourse? First consider the “patent troll”. The account given by Roger Kay is that the term arose when a spokesperson for Intel described opposing counsel in a patent infringement case, the late Raymond Niro (see here for a Kat remembrance of Mr. Niro), as a “patent extortionist”. Mr. Niro, hardly a shrinking violet when litigation was involved, filed suit against Intel for defamation. In-house counsel for Intel scrambled to come up with a term that would avoid a claim of defamation. Peter Detkin (then) of Intel suggested “patent troll”. As reported by Roger Kay--

Detkin defined patent troll at the time as “somebody who tries to make a lot of money from a patent that they are not practicing, have no intention of practicing, and in most cases never practiced.” Despite the basic nastiness of the term, the mythical troll can be a cute little gnome, leaving just enough ambiguity while preserving an essential pointedness.

By using the term, Detkin sought to cast in a negative light an entity that merely seeks to enforce the legal rights in the patent for monetary gain, as opposed to the inventor, or patent owner, who has an interest in actually making something under the patent. No matter that legally enforcing a valid patent is not an illicit act. No matter that there is no consensus on the metes and bounds of what entities are included in the term (is a university or a research center in or out?). No matter that there are also exists the term “non-practicing entity”, which presumably embodies the same notion as a “patent troll”. Migrating from literature, music, and art, the troll had made a triumphant entry into the way that the IP profession have described some of its own members.

More uncertain is the development and meaning of the notion of “internet trolls” and “trolling” on the internet. The definition offered by Wikipedia reveals this uncertainty—

In Internet slang, a troll is a person who starts quarrels or upsets people on the Internet to distract and sow discord by posting inflammatory and digressive, extraneous, or off-topic messages in an online community (such as a newsgroup, forum, chat room, or blog) with the intent of provoking readers into displaying emotional responses and normalizing tangential discussion,[3] whether for the troll's amusement or a specific gain.

Both the noun and the verb form of "troll" is associated with Internet discourse. However, the word has also been used more widely. Media attention in recent years has equated trolling with online harassment. For example, the mass media have used "troll" to mean "a person who defaces Internet tribute sites with the aim of causing grief to families" (footnotes omitted).

From an historical perspective, the term seems to reach back to the early 1990’s, in the largely benign sense in connection with a user of that time who was thought to be raising or discussing an issue that veteran users believe had been adequately covered. (One wonders to what extent Detlin was familiar with these early uses of the term in connection with the internet.)

From those origins, the terms as widely used on the internet today have morphed (some might say grotesquely so) to include a multitude of less bad or more bad behavior on the internet. A small amount of “trolling” behavior might constitute illicit activity, but in the main the term appears to lie outside of the realm of legal constructs. Moreover, it can be questioned whether internet “trolling” is disreputable conduct or merely the kinds of uses and effects that are part and parcel of the internet.

Circling back to the mythological character, “patent troll” seems closer to that original meaning, at least for those who view the behavior of a patent troll in a negative fashion. Less so is the case regarding “trolls”, “trolling” and the internet, where the use of these terms seems to be less effective in conveying a shared set of meanings. Which raises the question: how it happened that the IP world, so engaged in trying to provide clear and unambiguous meanings seems to have embraced the use of the imagery of the troll as part of our contemporary narrative?

More on trolls and how they were foiled under one bridge, the tale of “Billy Goats Gruff”, here.

By Neil Wilkof

Picture on upper right by Kay Nielson and is in the public domain.

Picture on lower left by Sam Fentress (traced to SVG by James Hales and is licensed under the GNU Free Documentation License and the file is licensed under the Creative Commons Attribution-Share Alike License 3.0