Norse mythology contains various views of trolls, from smallish giants to more human-sized cave dwellers. Today’s patent debate also has an array of definitions for “trolls.” Few of the definitions are particularly useful and, of course, most of them disparage some otherwise enterprising individuals or companies.
But make no mistake, there are bad guys. These are the people who bring, or threaten to bring, abusive, frivolous litigation that is designed to leach onto innovation and drain its value. Defining these bad actors is hard to do for purposes of legislation, but an effort should be made nonetheless, with a clear line drawn between legitimate and abusive behavior.
But the bad actors have also been provided a fertile field for their malfeasance. The litigation they threaten to bring typically takes advantage of low-quality business method patents—sloppily awarded patents that are vague and obvious, covering commonsense steps that are performed every day in a number of businesses. Armed with ill-defined patents the bad actors threaten litigation against a broad swath of companies seeking settlements as the companies seek to avoid costly litigation. In a word, it’s a shakedown.
This is nothing so exotic as a “troll.” Rather, we have old-fashioned trial-lawyer types abusing the system. But the solution is not to outlaw the bad actor, a fool’s errand at best. Rather, just as eliminating the justice system or class actions is not the solution to offensive trial lawyers, neither is eliminating business models. The key to eliminating trolls is to focus on the system that enables such behavior. So, in the end, it’s the patent problem that must be solved, perhaps through litigation reform but also through legislation.
The good news is that the Patent Office has a program that allows those caught in the sights of abusive litigators to quickly challenge the validity of their patent claim. But currently the program has been limited to “financial services” business-method patents. Such a program, designed to make secure our patent system, should be expanded to include all business-method patents. Not only would such a program bring relief to those directly involved in shakedown litigation, but it would also provide increased security to all of those who own intellectual property and to those who believe in the value of such property. The Patent Office could, over time, weed out the worst of the patents, or at least those that are used as vehicles of abuse, even while increasing the certainty of the remaining patents. In other words, legitimate property owners win.
Make no mistake: This is a fight about defending intellectual property. If you believe in IP protections then it follows that we need to know exactly what is being protected and instill confidence in the system. If you believe in IP protections you must believe IP has value; but without clear definitions value is lost just like with real property.
Perhaps one of the best things that could be done is to finally slay the “troll,” that is, identify those who are truly bad actors and not impugn legitimate business models, allowing everyone to focus more clearly on the underlying problem.