Patently-O Bits and Bytes No. 4

• Patent Reform: The influential Intellectual Property Owners association (IPO) recently reported its belief that the Senator Leahy will “attempt to pass a revised version of S. 1145 in the Senate in February.”  The Bill has already successfully passed through the Senate judiciary committee. [www.ipo.org]
• RelatIP: An “online community tailored exclusively to the unique requirements of intellectual property (IP) attorneys.” [www.relatIP.com]. 
• Facebook: To meet Patently-O readers, join the Patently-O Facebook Group.
• Patent Troll Tracker Concedes: The Patent Troll Tracker is tired of the “kerfuffle” and plans to limit use of the occasionally offensive term troll.  PTT’s specialty is sifting through the chain of shell corporations used by patent enforcers.  Feeling the fire, Ray Niro’s $10,000 reward is reportedly dangerously close achieving success — unmasking the identity of the troll tracker.  See McIntyre v. Ohio Elections Commission (“Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.”). (Image of Hamilton as the anonymous Publius).

Comments

[big hairy rat]

"tired of the “kerfuffle” and plans to limit use of the occasionally offensive term troll."

Alright, so "troll" is all used up as a useful word in the patent context. It's disappointing because, I thought "troll" was a pretty appropriate choice of word, with its allusion to the troll under the bridge in "Three Billy Goats Gruff".

Now we need a new word to describe a patent holder whose patents are of dubious validity (hello, Mercexchange, I'm talking about you) and which exists for no substantial purpose beyond extracting Dane Geld from successful companies (with the assistance and complicity of the Federal Courts as needed). Words like "bl******ler" or "ext*****ist", while perhaps sometimes appropriate, are not always accurate, have a tendency to be caught by filters, may provoke threats of litigation and will certainly provoke even more flame wars than "troll".

Those who have conducted a vigorous campaign against "troll" should remember that a rose by any other name will smell as sweet and changing the name of patent trolls will not change their odour.

[SG office]

According to the transcript, Mercexchange was called are "Orch" (sp?) by eBay at SCOTUS oral argument - does that help you feel better? BTW the victim of our "out of control and broken patent system" - (repeat other BSA/Intel/eBay sound bite here) - announced her retirement - net cash out $1.4 billion. Oink Oink.

[Just Visiting]

"Now we need a new word to describe a patent holder whose patents are of dubious validity ... and which exists for no substantial purpose beyond extracting Dane Geld from successful companies"

Of course troll is thrown around much more liberallty than this implies.

Seemingly, infringers don't seem to care that the validity of the asserted patents have been well litigated and established or that the willfulness of the infringer's willfulness is no longer in dispute. The patent holder is a troll simply because a) the patent holder's requested royalty is too high by some subjective measure and b) the patent holder cannot be forced into a cross license.

You can blame those who throw the term around loosely with eroding its usefulness.

[Malcolm Mooney]

From PTT: "Even Ray Niro used the term in his chapter in the book Making Innovation Pay - albeit while arguing that these so-called patent trolls were beneficial to society. Right next to the picture of him with his Ferrari near his Aspen home."

ROTFLMAO!!! Thick wallet. Thin skin. Such people disgust me.

[angry dude]

"BTW the victim of our "out of control and broken patent system" - (repeat other BSA/Intel/eBay sound bite here) - announced her retirement - net cash out $1.4 billion. Oink Oink."

Crying my eyes out for a poor mother of two ...

http://en.wikipedia.org/wiki/Meg_Whitman

Evil evil patent trolls...

[John Whitaker]

"Troll" is another word for "plaintiff" the way "anonymous" is just another word for "coward". I don't see how first amendment protections apply in the context of a private individual making derogatory and even slanderous statements about other private individuals. I'm no constitutional lawyer, but I thought the first amendment protected individuals against the government, not other individuals? As far as I'm concerned, if you have something to say worth saying, then be brave enough to take credit for it.

[anonymous]

Troll really is a handy term. In the story, the troll doesn't build the bridge, yet it demands a toll for using the bridge. Similarly, many businesses independently build their own devices (just like the bridge was built independent from the troll) and yet plaintiffs still demand damages. Thus, many plaintiffs could be considered trolls, even if they practice the invention themselves. Moreover, in the story, the troll provides no service, much like the non-practicing entity that asks for royalties but does not promote the progress of anything, other than the progress of patent reform.

Of course, troll isn't a very kind word. But it was a clever use of the term. Perhaps the trolls should take the millions of dollars in fees they are collecting and buy themselves some thicker skins.

[Former Techie, now a lawyer]

How is it that media companies and consumer product companies know to do clearance checks (and obtain permissions) BEFORE they embark on expensive branding campaigns or projects, yet when it comes to the patent world, all of a sudden everyone is an independent inventor? I have worked in some of the "big nasty" companies and when it comes to IT projects/product/etc., none of them have business processes to even check if they may have a problem. Are the marketing departments just smarter? Doubt it.

The preferred method for big business is to stick their head in the sand for a number of legal reasons (e.g. deny willful infringement) and/or cost reasons (e.g. maybe someone won't catch us). Then when someone comes knocking on the door, they act indignant. They use the word troll if the patent holder doesn't have the "right" type of company or revert to other name calling to suit their purposes. They don't care if the plaintiff is a troll or not, they are pissed they have to pay. Who's really taking advantage of or abusing the system here?

[MaxDrei]

"Troll" is pejorative. So, too, is "Abusing". It's always the other fellow who is "abusing the system" never me. From Europe, it looks like every US company acts rationally, within the complex and arcane US system as it is today. Thus tech does no clearance studies but MedTech did, because it made sense, to deflect findings of willful infringement. Now who has an interest in making the system less arcane? Not many within USA. Arcane is what keeps Johnny Foreigner at bay, no? But does arcane also block the enterprising US entrepreneurs that Sen. Reid wants to encourage?

[just a thought]

A corporate executive using the term "Patent Troll" to describe an inventor who has the guts to enforce his/her patents is EXACTLY the same thing as a member of the KKK calling a dark skinned 1960's era civil rights activist an "Uppity Nigger", or a Nazi using the term "Greedy Kike". These should be considered fighting words and beneath use by members of a forum as sophisticated as this one.

One other thing to recognize in the Troll stories is that it is an innocent virgin skippy happily through the woods that gets accosted by the troll. Picturing executives, especially medical device executives, in little red riding hood type clothing or as being in any way innocent is a laughable. If you want some really interesting reading on FACTUAL information regarding the depths to which these companies will sink, Google Michelson v. Medtronic.

Bottom line - this cool-aid is yellow and has brown stuff floating in it. I don't recommend drinking it, but if you do, don't expect a lot of respect from your peers as you wipe it from your lips and say "mmmmmm... yummy".

[Just an ordinary inventor(TM)]

Dear just a thought,

You got that right!, and you got a compatriot friend in me.