If the supposed mantra from the anti-patent troll camp is that “anyone who sues for patent infringement is a troll”, then the view from the other side must be “all patent reform will drive inventors into the ground and kill us all and OMG the sky is falling!!!” That sentence is totally worthy of three exclamation points.
Why do I over-exaggerate? Because of articles like this by Louis Foreman from The Hill. Oh, brother. They are highly critical of the troll haters and I think they even said that there’s no such thing as a troll, unlike leprechauns which are of course very real and probably living in my closet as I type. The article begins with this gem, wherein they take exception with the very term “troll”:
First, there’s the name—no one wants to be associated with something that sounds like the evil cousin of a leprechaun.
Zoinks! Maybe they *are* cousins?
Opening with a funny? Who do you people think you are, me? Anyway, Louis moves on to say:
For one thing, the issue of so-called patent trolls isn’t as all-encompassing as one might believe to hear the talk from Congress (not to mention the barrage of advertisements addressing the issue). In fact, an overwhelming majority of patent infringement lawsuits from 2007-2011 were brought by operating companies.
‘So-called’ patent trolls? Dear Innovation Alliance and all of you who retweeted the link to this article, please let me introduce you to eDekka. Yeah, I’d call them trolls and you should too if you want to be taken seriously. From the Matt Levy article at Patent Progress:
The most prolific filer was a patent troll called eDekka, which filed 87 separate patent infringement suits. In this latest flood of suits, eDekka sued companies like the NFL, Etsy, FTD.com, GameFly, and 1–800-Flowers. (eDekka had previously sued another 70 or so companies, including Apple, Lowe’s, Walgreens, and JCPenney.)
Eighty-seven separate patent infringement suits and these guys aren’t a troll? Look y’all, I’m on record many many times stating that I don’t think this is a problem that major federal legislation will resolve, except where it relates to lawsuits/demand letters and the things that the trolls should be required to put in. And I don’t even think it should go too far. But requiring that a plaintiff explain at least where infringement is alleged to occur, on what patent and in what product, is not too much to ask. Why? Because mounting a defense costs money, and much more so if you don’t know what you’re defending yourself against. It is not unreasonable to expect that if someone’s suing you, you should be able to decipher why.
In other words, just because eDekka is allowed to file a uselessly vague complaint, companies like B & H are going to have to waste tens of thousands of dollars on these lawsuits.
This is the problem with trolls: once they file a lawsuit, you’ve already lost. Even if you win, it will come at too high a price for some companies (mostly startups) to bear. It’s insidious and it’s mean and abberation of what patent law was created for.
Heightened pleading requirements would increase eDekka’s costs substantially, because it couldn’t simply reuse one complaint 87 times.
Why would anyone complain about this? I keep thinking to myself “Self? If I were so convinced that someone had infringed on my patent I would be all up in that business and list out every single instance of infringement and find a way to prove it was willful if I could (and snag those treble damages).” Why don’t the trolls like to explain what they’re suing over? Ooh ooh, I know this one! THEIR CLAIMS ARE BOGUS.
Patent reform haters say
We simply want to be part of the discussion and make sure that we are not the collateral damage from a rushed and not-so-well-thought-out legislative process.
If that’s the case, then quit pretending there isn’t really a troll problem. I’m constructing my Q&A with an inventor right now, it’s not like you guys don’t have a forum. Just be smart about how you use it, and not say things like ‘so-called’ trolls.
Some companies are ‘so-called’ because they so are.
IPTT
{Creepy trollechaun image found here.}
IP Troll Tracker 