Is it Time to Stop Using the Term "Patent Troll"?

Two articles were recently published in the John Marshall Review of Intellectual Property Law, in which the articles derided use of the term "patent troll." It's derogatory, inaccurate and it sends the wrong message to lesser-funded innovators; say what you will about the patent system, but stop with the name-calling, argue the authors.

The first article, written by Ray Niro, expounds on the Patent Troll Myth article, and argues that use of the word "patent troll" is a veiled attempt by large companies to besmirch independent inventors and their contributions to various technologies. By coining a snappy, but pejorative, term on litigious inventors ("troll"), Niro argues that this tactic has helped large companies to walk over smaller entities:

Famous criminal defense lawyer, Percy Foreman, once claimed that he focused his trials on the bad acts of the victims of heinous crimes to divert the juries’ attention from his clients’ own bad acts. This tactic begot the name “victimology” and maybe, at some point, the juries in Forman’s cases actually thought the victims deserved to die—victimology at its extreme. Examples of victimology abound, including the Menendez brothers’ defense: “We had to kill our parents when we became adults because, as children, they abused us,” and, as O.J. claimed, “The system is out to get me: I was rushed to judgment.” Like O.J. and the Menendez brothers, [a large company has] to make itself appear the victim to divert attention from what [is] really happening.

Niro further adds:

Are “patent trolls” really so dangerous that legislation is needed to reform the patent system? Or, is the now over-used term “patent troll” just a way to disparage individual inventors and the attorneys who take their cases? Worse, is it even possible that the phrase “patent troll” embodies subtle public relations, in which perpetrators of infringement collectively claim to be the victims?

Oddly enough, while the article pleads for less name-calling, a few choice terms are proposed to describe attorneys that defend large corporations against claims of infringement from independent inventors:

[S]uppose someone wanted to bash big-time lawyers whose clients hired them to defend patent infringement lawsuits, claiming an inventor’s patent is invalid, not infringed and procured through inequitable conduct. Let us create a disparaging name for them. How about “Patent Bloodsuckers,” e.g., an animal, such as a leech, that sucks blood? Seem too harsh? . . . Then what about “parasite”? “Parasite” is defined as: An organism that grows, feeds, and is sheltered on or in a different organism while contributing nothing to the survival of its host.

Okay: Let us call them “patent parasites.” They feed on inventors, contribute nothing to innovation, and depend for their survival on the millions of dollars in fees they extract from their clients. So maybe “patent parasite” fits. And maybe we can even create a cartoon of the “patent parasite”— a Dracula-looking character, consumed by a bare desire to attack helpless inventors, he will destroy patents and the innovation they protect all while we, as a Nation, slide gradually toward technical mediocrity. Bad image, yes? If enough people start saying it, some people may start believing it - essentially following the circuitous route that led to the derogatory term “patent troll.”

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In a more measured approach, the second article was written by student Jennifer Kahaulelio Gregory, who argues that the term "patent troll" is meaningless, since no one can accurately define who is a "troll" and who is merely a "non-practicing entity" (NPE). The article points to examples like Eastman Kodak, who successfully sued Sun Microsystems for $92 mil. on a patent it inherited, and did not practice:

No one has ever called Kodak a Patent Troll, even though it was not “practicing” that particular patent. Many large manufacturers create a strategic advantage by holding unused patents in their patent portfolio, and forcing competitors to come to them for licenses in order to use the patented technology. Also, many individual inventors hold patents on their inventions, but they have neither the expertise, nor the money to manufacture them.

In other words, most patent holders, small or large, are essentially doing the same thing as everyone else when it comes to patent enforcement. Regarding the "waves" of litigation caused by patent holders (NPEs), the article points out that a recent study by the Antitrust Modernization Commission indicates that of patent infringement lawsuits filed in thelast five years, NPEs filed about two percent.

With all the bad press patent holding companies have received over the last 2-3 years, it was only a matter of time before defenders of patent holding companies started to publish articles that responded to criticisms of the enforcement/licensing process. We can anticipate more of these articles to publish in the coming months as congress continues the attempt reform patent law in the U.S.

Download Articles

Raymond P. Niro, Who is Really Undermining the Patent System – “Patent Trolls” or Congress?

Jennifer Kahaulelio Gregory, The Troll Next Door


See also,

James F. McDonough III, The Myth of the Patent Troll: An Alternative View of the Function of Patent Dealers in an Idea Economy.

Article from Robins Kaplan, ""Patent Troll:" A Self-Serving Label that Should be Abandoned"