Most typically, I have heard trolls described as
TRaverse Obligers as Licensing and Litigation Specialists (TROLLS).

I.e., they erect barriers by acquiring technology at relatively low cost, and then generate revenue through enforcement of those barriers. The key distinguishing features are that they put zero investment into R&D to develop the technology, and have no products or assets that relate to their opponents (thus not having a comparable cost of production in discovery).

I have never heard of anyone distinguishing a troll on the basis of their level of pre-filing investigation….
I think Eon-Net’s behavior is the exception, rather than the rule. Look at Orion IP, as a more typical patent troll: litigious, aggressive, but also smart and prepared. Fundamentally, they are, as you say, “well-prepared investors”, businessmen. The last thing they want is for their patent to be declared invalid or unenforceable, so they are unlikely to take stupid risks that put their property and livelihood in jeopardy.

I still think, however, that MOST would still consider them trolls.

I do agree, however, that the Eon-Net decision will discourage the type of behavior of the Eon-Net case, but my basic point is I think that behavior is not indicative of most TROLLS, at least as I have defined them.

I have a better word than troll to describe Eon-Net and their tactics: incompetent.

P.S. Sorry to post anonymously, but my firm has a bit of a hangup about attorneys making public comments….

What makes a troll? What behavior puts a patent owner in that category? The behavior of the patentee in Eon-Net was quite egregious and, I suspect, most people would label them a “patent troll” under most any definition. Your exemplary “trolls,” however, with their thorough Rule 11 investigations, are more in the grey area. Many people would avoid tagging them a troll, and instead call them well-prepared investors.

All that being said, I do believe that a Rule 11 ruling that shows low or no tolerance for the egregious behavior exhibited in Eon-Net could significantly impact the willingness of attorneys to participate in such ’strategies.’ The ultimate outcome could be that the “true trolls” (the egregious set) have trouble bringing their cases, while the “well-prepared investor” set continues on without any change…..because they’ve been behaving all along and, arguably, aren’t trolls at all.

Thanks again for the comment.

This might be the dumbest statement I’ve ever heard. Sorry to be so harsh, and I love your blog (as well as the FedCirc.us site!), but don’t believe for a second that this decision will have a significant impact on the so-called patent troll problem (assuming one exists).

1) R. 11 decisions are EXTREMELY fact specific, and there were many equities weighing in favor of the movant. The only equity that arguably weighed in favor of the firm is the “small firm” bit, which will always fall on deaf ears (no matter how little money you have, a lawyer ALWAYS has an obligation to behave ethically).

2) Point of fact is that most patent trolls DO perform pre-filing investigations that meet R. 11 standards because it cuts down on their legal bills in the long run (adding $$$ to their bottom line). They tend to be far more prepared (naturally) for litigation than the defendants. This particular “troll” apparently performed NO such investigation, and as I recall (not having read the CAFC opinoin yet, only the District court) the question on infringement wasn’t even close, and had the “troll” so much as visited the defendant’s website, that would have been obvious.

3) Many patent trolls file their lawsuits in the E.D. Tex. which places a prefiling preparation burden on plaintiffs that is MUCH higher that R. 11 standards, in my opinion. You’d get bounced from E.D. Tex for failure to comply w/ local rules FAR before you would see a R. 11 order levied against you.