Anticipate This!™ | Patent and Trademark Law Blog

Patent Trolls and Definitions Thereof.

Posted in General Commentary by Jake Ward on August 28, 2006

As defined by Wikipedia (arbitrary and capricious?), the term “patent troll” is a derogatory term used to describe a patent owner, frequently a small company which enforces patent rights against accused infringers, but does not manufacture products or supply services based on the patents in question.  A patent troll may represent an entity which performs research or manufactures products incorporating the patented technology, though the troll itself does not. Patent trolls focus their business on the enforcement of intellectual property rights.

Aside from the derogative connotation the term is given, I dislike the Wikipedia definition.  Something is missing.  Are patent trolls, as defined, really all that bad? 

By definition, the patent right is a right to exclude others from making, using and selling the patented invention for the term of the patent.  In a sense, the patent is a contract with the government to a limited monopoly negative right on the technology, which is provided in exchange for full disclosure to the public.  If a full disclosure has truly been made, i.e., if the troll has held up its end of the bargain, hasn’t the troll every right to do with the intellectual property as the troll sees fit? 

Rather than having the definition focus exclusively on the behavior of patent trolls, I believe a more pertinent characteristic is the quality of a troll’s patents.  Isn’t the disgust associated with the term more related to the enforcement of questionable patents, the enforcement of which can result in exorbitant licensing fees and/or the inhibition of technological developments?  Would the general public really be that upset if the patent being enforced was unquestionably (or at least reasonably) valid? 

I believe the definition of “patent troll” (Wikipedia or otherwise) should be further limited by requiring that the patent also be of “reasonably questionable validity” .. . . in addition to focusing on the behavior of the alleged troll. 

How do you think the term “patent troll” should be defined?

One Response

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  1. not given. said, on September 1, 2006 at 11:34 pm

    determining whether patent is valid is exactly what patent litigation is supposed to do. There is no reason to suppose that patents held by somebody somebody else called a troll is less valid than a patent held by somebody else. In fact good reason to believe that they would be on average more valid. A patent held by a troll is a patent that somebody other than the inventor presumably did extensive due diligence on and paid real money to be involved in that litigation. That’s more than you can say for 99% of patents.


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