Courts Resist Using the Term Patent Troll

Despite being used en gross by accused defendants, courts have largely resisted using the term “patent troll” in their decisions. A Westlaw search revealed only seven examples of the pejorative term in court decisions:

• IP Innovation v. Ecollege.com (Fed. Cir. 2005) (The CAFC noted that the term had been used in the defendant’s argument, but refused to engage in a discussion of its implication).
• Colida v. Sanyo (Fed. Cir. 2004) (In dissent, Judge Newman argued that attorney fees should not be granted against an accused “patent troll”)
• Hynix Semiconductor v. Rambus (N.D. Cal. 2008) (Judge Whyte granting Rambus motion in limine to prohibit use of the term “patent troll” during the trial)
• Taurus IP v. DaimlerChrysler (W.D. Wisc. 2007) (Citing Magliocca’s article; piercing the corporate veil of the accused “nonpracticing entities”)
• InternetAd Systems v. Opodo ( N.D. Tex. 2007)  (Defining a patent troll as a “small company that did not manufacture products or supply services based on patents in question but enforced patent rights against accused infringers in attempt to collect licensing fees”).
• Overstock.com v. Furnace Brook (D.Utah 2005) (The court indicated a preference for finding that “patent trolls should be subject to more general jurisdiction, perhaps as a way of deterring coercive baseless litigation.” However, the court could not find a legal hook for such a holding.).
• Black & Decker Mfg. v. Baltimore Truck Tire Service (D.Md. 1928) (Patent was issued to Mr. Fred Troll)

In the eBay decision, the Supreme Court ruled that the status of the patent owner may not operate as a categorical exclusion from the prospect of injunctive relief.

Comments

[David Caracappa]

The last example made me break out laughing. Thanks. I needed that this morning.

Dave

[Thomason]

Perhaps that (1928) case is cause to rename these 'entities' as "Freds." All CLE materials must be changed, e.g., to read "IP Patent Freds - What Counsel Needs to Know."

[Michael R. Thomas arguably the worlds only inventor of signifence.]

First we need to examine where the term evolved from (patent patroller) One who asserts the legal right where others may fear to tred. I consider them to be bounty hunters who purchase the rights with the inventor recieving little of what should be theirs.Under my new reform proposal Uspto would take over the enforcement efforts to bring the I.P. thief in line with the law.Of course amounts collected should be inline with the %of total product value that the invention deals with this will probably need formulas of determination of value.Whole product infringements would deal plant shutdowns wile equipment infractions would result in small usage requireed lisencings.

[WindyCity]

Mr. Thomas, I agree that no one will argue with your claim to be the world's only inventor of "signifence". At a minimum, you have invented an interesting new word.

[WindyCity]

Mr. Thomas, I agree that no one will argue with your claim to be the world's only inventor of "signifence". At a minimum, you have invented an interesting new word.

[anonymous]

"In the eBay decision, the Supreme Court ruled that the status of the patent owner may not operate as a categorical exclusion from the prospect of injunctive relief."

Even if there is no categorical exclusion, how many post-eBay district court decisions have granted an injunction to a non-practicing entity? How many of those have been affirmed?

I fear that district courts and the Federal Circuit will treat the Kennedy concurring opinion as the majority opinion and the Roberts concurring opinion as the dissent.

[Mitt Romney's PTO Director]

Are ASCAP and BMI copyright trolls?

Are companies that develop designer brands and license them to others who use the brand on products the licensor does not make Trademark trolls?

[Michael R. Thomas arguably the worlds only inventor of signifence.]

To windy city-As you have probably guessed my referance to significance refers to the creation of the insignificance by other inventors that being the unmarketable or trash invention such as that being processed now by U.S. patent office.You are obviously prejudging my inventing ability based on the corrupt awarding of patents of significance by uspto thats why I am trying to change that by proposing inventative new legislation concepts.If you have time I can reverse your prediucal basisless opinion (in most cases except billegerance)by showing the actual correct chain of inventorships.

[ironicslip]

mitt - your work at bain is suspect in light of the meltdown ...

ascap and bmi are "DOJ - consent decree - delimited trolls" for PERFORMANCE RIGHTS ... the only folks who actually get paid-oiled are squeeky wheels ... and it is darn near impossible to sue them for transparent reporting ... ask peter myers (love boat, etc.) ... soundexchange is likely closer to the example as it is an extension of the major labels ...

what about any pool of ip (that is not a patent) brought together for purposes of potential "manufacture"? movie scripts, blueprints, crib notes, lectures, domain names ...

throw some risk capital at those pools (a lot less than risk capital for patent litigation) and no one would bat an eye at the need for liquidity (that risk capital) ... or opportunity and not brand the buyer as a troll ...

name calling as strategy in patent litigation ... and messaging doesn't matter? uh, huh

[Donavon Lee Favre]

Thomas Edison was a patent troll. He said that he did not make any money at it and that his attorneys got all of the money. What is wrong with that? He said that he made his money in manufacturing.