Tech patents have been the trolls’ bailiwick for a long time now and don’t you think they’re getting a little sick of the same ol’, same ol’? I mean, even trolls get bored sometimes and need to spice things up. Plus, the tech industry fights itself often enough that the trolls don’t really need to stoke that fire anymore. (Hello, smart phone patent wars spaghetti graph.)
What’s the next ambulance to chase? Meghana Keshavan and Jay Nuttall seems to think that it’s Big Pharma, and I agree. They actually say “life sciences”, which includes more than just pharmaceutical companies, but I think pharma will be part of the crowd. So who’s doing the hitting? You’ll see a lot of familiar faces on this list:
The recent Steptoe paper, titled “The Patent Trolls Are Coming… To Medtech,” outlines what it views the most egregiously trollish NPEs in the life sciences space. These include Acacia Research Corp., WiLan Inc., Intellectual Ventures Inc., IPNav, My Health Inc. and DE Partners Golden Rule LLC.
The article upon which Mehgana Keshavan based her write-up is found here, and it should be required reading for a number of reasons:
1. The side-bar box on Page four provides a list of secret weapons used by trolls. The first one is key: “Trolls don’t care what you think.” Some of them even encourage you to think of them as thugs. Not that I’m talking about anyone specifically like Erich Spangenberg because I’m totally not even though I linked to his article and posted his picture. Make no association between those two things.
2. He correctly points out on page 3 that trolls follow the money. That’s why they went with tech first. Once that’s played out, they’ll head to the next big thing: biomedical devices and pharmaceuticals. Then I think they’ll head to oil, but we’ll get to that.
3. Jay says on page 4 that one way to anti-troll yourself is to be a strong defendant. How do you be a strong defendant? He has his ways, but I say one way is to know how the trolls have asserted their patents in the past. You can get that information by looking it up on PACER, or paying the likes of Lex Machina or RPX to provide it for you. That will tell you where they’ve already litigated. Or, you can encourage demand letter recipients to enter them in That Patent Tool. The sooner we start tracking pre-litigation movement on these guys, the bigger our advantage will be!
It’s great to see a law firm partner willing to step out, similar to the way Goodwin | Procter did with their Guide to NPE Litigation. Steptoe & Johnson LLP is throwing their hat in the ring with this paper, and they hit the mark. We’ve also had Intellectual Ventures threatened with getting the Jones Day-lights beaten out of them. I think it’s cool that firms are taking the problem on rather than just playing to the side that will pay them the most. It’s a start, considering that lawyers, after all, always the win no matter what.
There are lots of reasons why biomedical and other life sciences companies will be patent troll targets, no question. But I think now, like I did then, that oil companies will have a target on their back as well. Why? Let’s spell it out:
- When the price of oil goes lower, companies invest fewer resources in trying to get it out of the ground because their profit margins are directly related. So they turn more to technology to help, rather than roughneck boots on the ground, which are more expensive. This technology results in patents, and patents make them vulnerable to trolls.
- Big Oil is increasingly driven by software. They use it to analyze their tool usage and get equipment out of the ground before it hits the MTBF (Mean Time Between Failures) hour mark, they use it to price jobs, they use it to predict where the next big find will be, they use it create specialty invoicing systems…lots of things. The Alice decision hurt the trolls’ ability to beat people up with software patents, but the decision wasn’t the “kill all software patents forever” edict some hoped it would be. Since trolls seem to think they can apply spurious patents to software of all kinds, this is a hole they could worm through.
- Seeing the way other industries have been hit, they have started buying up patents, possibly as a defensive move as I pointed out in the Q4 2013 Quarterly Troll Review.
It’s hard to fully predict where the trolls will go. Did anyone see patent litigation as the next big thing, once actual ambulance chasing went out of vogue, and then tort reform killed the dust docket? Problably not. But there’s one thing we can predict with 100% accuracy:
Trolls will go somewhere. They always do.