Patent Attorney vs. Patent Troll Meme


Full disclosure: I am a local patent attorney. I like patents. I believe that patents are critical parts in the economic engine. But don’t take my word for it. Patents are so important that they’re enshrined in the United States Constitution (Art. I, Sec. 8, Clause 8).

Unfortunately, there is a modern “patent troll” meme that whispers “patents stifle innovation.” How did this start? Who started it?

The Fairy Tale Turned to Life

When the catchy phrase “patent troll” was still somewhat in its infancy, I addressed some of its dangers in “Patent Troll Myths and the Law of Unintended Consequences.” See IP Today, November 2013. Bundled nicely into Big Technology’s “patent troll” myth is a straw man argument. It includes an evil actor, a dubious patent right, and a victim. The underlying fairy tale is that if those roadblocks called patents didn’t exist, no evil actor would ever be able to harm innocent victims and stifle innovation. Ironically, the opposite is true.

The Reality

Amorphous “patent trolls” aren’t in the cross-hairs. Patents themselves become the target. Granted, there are frivolous patent infringement lawsuits in the patent world. That’s the case in any ecosystem. But you don’t heal the infection by killing the host. Unfortunately, the U.S. patent system is being taken over by Big Technology, which helped re-cast the patent system under the America Invents Act a few years ago. Now the big players want more. They want to mischaracterize almost any patent assertion as trolling and place a stigma on patent holders for daring to enforce their property rights. Under the guise of tort reform, more calls are now being heard for laws and regulations to further restrict patent holders’ rights to enforce their patents.

The Real Life “Patent Trolls”

Start-ups and small inventors who struggle with funding often have only a patent to protect themselves as they enter the market with their innovative ideas. If their market-disrupting technology – protected only by a patent – is infringed by Big Technology before the patent is even a month old and the patent is crushed right out of the starting gate, that’s the end of the start-up, the jobs they might have created, and the exponential innovation that might have come from the fruition of their ideas.

You might say, “Well, if the small company’s patent was sound, it would have survived the initial onslaught at the Patent Trial and Appeal Board.” {Or later in a federal court.} That may be ultimately true in some cases, but if a Big Technology opponent can throw an army of patent attorneys at a start-up’s patent, the tidal wave of money can nearly always find a way to defeat any patent – or the small company will collapse beforehand. As we say, “if you don’t have the law, argue the facts; if you don’t have the facts, argue the law; and if you have neither, pound the table.” The “patent troll” meme is pounding the table.

Big Technology seems to be winning the PR battle with the “patent troll” meme. But wouldn’t it be even better if they don’t even have to get into the ring and can simply further devalue patents through “tort reform?” Oh yes, the patent itself may be sound, but if the system makes it impossible to assert, the means will achieve the ends. A patent that can’t be enforced, either on its merits or procedurally, is of limited value.

The Cost of Big Technology’s Influence

If the patent system deck becomes too stacked against solo inventors and start-ups, these innovators may think twice before pursuing a patent and launching a company. How many cutting edge inventions will never see the light of day because Big Technology controls the playing field?

What can we do? Contact Congress of course. They only act when pressure affects their re-election chances. At least tell Congress not to swallow the “patent troll” meme hook, line and sinker. Let’s not cede more ground to Big Technology and allow Art. I, Sec. 8, Clause 8 of the Constitution to become an empty letter.