Intellectual Property

The Patent Troll’s Last Sigh?

It is hard not to believe that the term ‘patent troll’ may have passed its useful life in the vernacular and is on its way to retirement.

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We are somewhere around the 20th anniversary (give or take) of invention of the term “patent troll.” A term that even has its own Wikipedia page. Which means, for me at least, that the term has been around for the duration of my career to date as a patent litigator. Technology has changed a lot in that time, of course. Yet the use of “patent troll” endures. In fact, the term has been part of the popular conception of patent litigation across at least three generations of current practitioners.

First, the generation that preceded mine, where partners struggled with the big question in the mid-2000s within Biglaw IP groups — should we represent “patent trolls”? My firm at the time said no, as did many of our competitors. Not a surprising decision when the targets of the patent trolls in those days were the very potential clients my firm was constantly trying to get defense work from. Even then, however, getting a precise definition of what was an acceptable patent plaintiff versus what type of entity was a pariah “patent troll” was a difficult task.

More than a decade later, my generation of patent litigators continues to deal with the “patent troll” question in some capacity — including the question of what a patent troll is in the first place. As with anything subjective, one’s perspective on the question is likely shaped by their practice and professional motivations. Those who get paid by defending companies against patent assertions are more likely to espouse an expansive definition of “patent troll.” While those who represent patentees, whether they be universities, inventors, or patent assertion entities, are likely to deny that their clients are trolls under any rational definition of the term. The sad thing is we are still discussing the definition, even if only in the context of whether the term should continue to have any weight.

For those sick of the discussion, there may be good news afoot. Yes, even the current generation of patent litigators who came of age in this post-AIA era may still be using or arguing over the term “patent troll.” At the same time, however, there is renewed momentum toward retiring the term in favor of something more accurate and less emotionally charged. At the forefront of that effort has been the USPTO’s Director Andrei Iancu, who announced last year that the narrative at the USPTO has changed from fearing “patent trolls” to one celebrating the “brilliance of inventors, the excitement of invention, and the incredible benefits they bring to all Americans and to the world.”

While Director Iancu’s words were hailed by inventors and patent owners, the anti-patent troll, pro-efficient infringement lobby did not take his words too kindly. To them, “patent trolls” are not a myth, but a real menace. They accused Director Iancu of “choosing to ignore this situation, to satisfy his audience” at a “gathering of lawyers and judges in the Eastern District of Texas,” land of the free and home of the trolls in their reckoning. Their objection to Director Iancu’s statements confirms a widely held view that the persuasive effect of the term “patent troll” is a potent one, especially when it comes to shaping public (and more importantly, Congressional) opinions about patent assertion. Likewise, Director Iancu’s attempt to shift the narrative toward a pro-patent owner orientation implicitly recognizes that one important step in that process is eliminating talk of “patent trolls” from the public discourse as soon as possible.

While the battle over whether “patent troll” deserves to remain in the lexicon continues, one frustrated patent owner has taken matters even further than just lamenting the state of things at a bar conference. Alleging defamation, a New Hampshire serial inventor filed a case in 2016 against a panoply of entities united by the fact that he had previously sued them or their clients for patent infringement — and called him a patent troll along the course of their defense of his lawsuit. While his complaint was dismissed, the appeal is currently pending before the New Hampshire Supreme Court. Watching the oral argument doesn’t really give me much confidence his case will be revived but he has also made his point, to the extent anyone needed further proof that use of the “patent troll” label inspires emotional responses across the board.

While this inventor’s quest to create a cause of action against those who use the term “patent troll” may prove quixotic, it is important to remember that when it comes to the court of law — as opposed to the media, for example — use of pejoratives like patent troll before a jury has long been prevented by most judges. In just the latest example I found, a New Jersey judge allowed a patent defendant to refer to the patentee as a “licensing enterprise,” but restricted the defendant from arguing that such a business model was problematic. In short, when a defendant can’t even cast aspersions on a licensing business model, the odds of a judge allowing an alleged infringer to label the patentee a “patent troll” are nearly nil.

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Ultimately, it is hard not to believe that the term “patent troll” may have passed its useful life in the vernacular and is on its way to retirement. When and if that actually happens no one knows. But we can bet that the debate over whether litigation initiated by a non-practicing entity is somehow less worthy than a competitor case will long continue, both in the media and in the court of law. While the term “patent troll” did not make a lot of headway in the latter forum, it has proven very much associated with patent litigation in the former. More than ever, however, it seems many are hoping the troll’s last sigh is nigh.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique, and Markman Advisors LLC, a leading consultancy on patent issues for the investment community. Gaston’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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