Remember a hundred years ago (give or take) when the Supreme Court was trying to define “obscenity” and this was before The Internet really took off so we couldn’t just look up a picture of a woman wearing white shoes before Memorial Day and be done with it? I believe the official definition went something like this:
I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
Methinks we’ve been snookered here re: the debate about what is and is not a patent troll. I am way too lazy to go look up all the blog posts about how to properly define a troll, which would help demonstrate how much back and forth there is about the topic, but rest assured the debate abounds. And truth be told, I think it’s fair and good and right to try and define the terms used in the patent litigation industry because they’re helpful to people who are just starting to be affected by it (re: targets who’ve received their first demand letter). I’ve even written about it myself.
But here’s the problem: there are so many definitions and too many cases where any given definition only fits some of the time. As soon as you define what trolling is, narrowly or broadly, a troll is going to come back and say “But we don’t do that all the time, that was just that one time and it’s not our core business” or “that is just a very small part of our business and we had to do it because everyone else is” or “look at all the ways that we don’t fit that definition!” or my personal favorite “We didn’t go after anyone for that patent, we just sold it to someone else…how do we know what they’re going to do with it?!” It’s becoming a huge red herring, something the trolls can watch us dicker over while they continue their assault on innovation right there in plain site.
This is why Rachael Lamkin’s point in her dialog with IP Watchdog is so important: “we know a troll when we see it”, just like Justice Potter Stewart said from the SCOTUS bench lo those many years ago. I think this is very true, and I think the trolls count on people jumping on the label bandwagon trying to figure out how to fit each and every bad guy into a column on a spreadsheet, all the while they’re out there shape-shifting and changing their business model to fit their ultimate goal: extortion of fees for patents. (Which, incidentally, is why I think the government’s new law proposals and Presidential edicts aren’t going to matter in the end: the trolls will always find a way around the legalities of it, the same way they find ways to avoid being labelled as one of the synonyms for “Patent Troll”.)
What’s going on is, as the issue of patent trolling attracts more and more attention in the mainstream media, the message is getting diluted and the waters are getting muddied. Good thing that herring is red or we might’ve missed him. The way you determine whether a company is a patent troll is not by a single definition, it’s by a pattern of behavior over time, by looking at the results of that behavior and ascertaining “Is this behavior that is good for American businesses or is this behavior that gets in the way of progress?” In a lawsuit it’s the stage where you “prove up” your case.
So how do we do that with trolls? I’ll tell you how: we enter demand letter data and over time, the question of what is a troll, never mind who is a troll, will all but answer itself. We build a community around how these guys behave…what they ask for in settlements, what they demand in their initial leaflet drop from their G-5’s, how they handle their claims construction when things get to litigation, the list goes on. By looking at behavior over time we will be able to tell which companies are the real villains, and which are just victims of circumstance.
Rachael makes a great point in her discussion with Gene:
we know that these Trolls work in waves with these cease and desist letters and most people who get these cease and desist letters figure they’ll just keep quiet. The problem with that is they’re giving up key advantages like forum choice so they can all talk with each other without talk — speaking publically you might be able to figure out how to pull funds and go have one company step forward or find the best DJ Jurisdiction and have that company step forward and bate the Troll into giving him another correspondence to trigger DJ Jurisdiction, right? That’s one way where you might really start to push back on these 8 Symmetries, but there’s no way, there’s no forum, there’s no secret forum for the recipients of these letters to even speak with each other.
This is my field of dreams, what That Patent Tool is trying to become. That place where people can enter in the demand letter data and build a community around it. It’s not perfect yet, some of the features are still being built out, but it’s coming.
This is where we should be focusing efforts right now. I love me a good debate about the terms and conditions that warrant the use of the term Patent Troll, I can’t deny that. But let’s not get so hooked into the school of fish that will lead us straight out into an ocean of meaningless banter that we aren’t able to do some fishing of our own.