Wall Street Journal reports on patent trolls? Not really, but it does highlight a problem
Today, the Wall Street Journal reports on the so-called patent “trolls” (Link here (subscription required)). That’s what I thought when I pulled my copy from the mailbox this morning and saw the headline Aggressive Patent Litigants Pose Growing Threat to Big Business on the front page.
I started reading the article as I walked back into the house expecting a thorough analysis of the so-called troll problem.
I was disappointed.
The article misses that mark, amounting to nothing more than an account of one particular patent lawsuit. There’s no question the author intended to talk trolls (”…lured by the potential returns…investors now are bankrolling businesses that buy up patent portfolios….Critics call the small litigants “patent trolls” and say they are parasites on successful businesses.”). The article mentions the Patent Act of 2005 in passing, pointing to the injunctive relief provision and its support by “technology companies” and opposition by inventors and pharmaceutical companies. Almost unbelievably, though, it fails to highlight the controversy surrounding this provision and the draft amendment that would completelyeliminate it (and the hearing on that amendment that is scheduled for tomorrow).
The author, unintentionally and, I think, unknowingly, highlights a critical problem in the patent troll debate - the so-called “trolls” are a difficult bunch to define. The plaintiff in the example lawsuit portrayed in the article is perhaps the worst “troll” the author could have chosen - a small company that, after experiencing early success, made a business decision to focus on enforcement of its patent rights.
Wow. If that’s a “troll,” stand back because the entire system is about to crumble.
Worse yet, it sounds as if the patent rights being enforced in that lawsuit were for an invention made by one of the principles of the business. That’s right - the plaintiff didn’t snatch the patent claims in a fire sale at the local bankruptcy court (an action typically attributed to the so-called “trolls” and rarely recognized as a smart investment move). Nope. It acquired them the old-fashioned way…through invention and patent prosecution.
Evil trolls.
No matter which definition you apply, it’s difficult to envision a world in which the company portrayed in the article would qualify as a troll that, for whatever reason, is deserving of lesser property rights than others.
Here’s the bottom line - the term is impossible to define without circumscribing the property right provided by patents. Any attempt to do so creates a policy nightmare. Continuing to do so stands to derail the real patent reform movement that should be focused on patent quality.
If a patent is valid and enforceable, it should not matter who owns it. Period.
I think Dean Kamen stated it best after being introduced at the recent Conference on Patent Reform in DC, “Hello. I’m Dean Kamen. I’m a troll.”
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