“Patent trolls”, that’s what he said.
Saw this blurb the other day via a post from a colleague on LinkedIn, which is sadly where I get some of my news when I’m in a hurry. In Commil USA LLC v. Cisco, Justice Scalia had this to say, right there on page 20 in his dissenting opinion:
I may add, however, that if the desirability of the rule we adopt were a proper consideration, it is by no means clear that the Court’s holding, which increases the in terrorem power of patent trolls, is preferable. The Court seemingly acknowledges that consequence in Part III of its opinion.
(Emphasis mine.) It’s a two-fer, folks! Not only did Scalia acknowledge such a beast as a patent troll, but threw in my second-most favorite Latin phrase of all time, in terrorem which means “into or about fear”.
Spot on. Fear is what patent trolls are all about. They willfully, intentionally, and on purpose induce fear in demand letter recipients by requiring a payout in the form of a license or else they’ll sue you. But it’s also about the trolls themselves being afraid…I’m involved behind the scenes right now in a bit of a situation with a company that is going after competitors with patents out of fear that their product isn’t quite as good as they think it is. Don’t feel like competing on the open market? Worried your invention might not actually be all that and a bag of chips? Sue people for patent infringement and hope they go away! It’s frightening and infuriating, especially if you’re the target.
I’m sorry I missed the Twittersphere back and forth on this one because seriously, I AM? You’re going with the tired “…but did he define what ‘patent troll’ means? Did he? Huh, huh?? Did he??” line? There are not enough eye rolls for that stupid, tired line.
Give it a rest on that, folks. Patent trolls are real. You know it, I know it, and at least one of the Supreme Court Justices of the United States knows it. #legitimacy
Finally, I thought this (from the dissenting opinion) was pretty funny:
Next, the Court says that “invalidity is not a defense to infringement, it is a defense to liability.” Ante, at 11. That is an assertion, not an argument. Again, to infringe a patent is to invade the patentee’s right of exclusivity. An invalid patent confers no such right. How is it possible to interfere with rights that do not exist?
If a patent is invalid, you can’t infringe, proving that even the US Supreme Court has its own “Well, duh!” moments.
It also led me down an entire evening’s worth of study on argument vs. assertion and I missed 1/2 of America’s Got Talent with that little time suck, so thanks for that, Justice Scalia.