Definition - "Patent Troll"

"PATENT TROLL" - Any party that intentionally misconstrues the claims of their patent to assert it against another. A patent troll does not have to be a non-practicing entity (NPE) or in any particular industry, all that is required is an intentional misconstruing of the claims in an attempt to extort money from another.


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Friday, May 27, 2011

Trolls under the Bridge - Patent Reform Proposal

[UPDATE]  Patent trolls are not a software patent problem, they can affect any industry and commonly do.  I have spent over 10 years fighting patent trolls, mostly for the computer hardware industry (microprocessors, data storage devices, etc.).

While dealing with patent trolls, I have come to the following conclusions:

1) Patent trolls suck and usually need to misconstrue the claims of the patent to have an infringement argument;
2) It is hard to write a patent reform law to get rid of trolls (trust me, I have tried) because you will inevitably include some people who are not trolls who have a good claim against an infringer;
3) Patent trolls exploit loopholes in the patent system to maximum benefit (will explain below);
4) rarely are the claims nearly as broad as the patent troll is trying to assert. (thus, I do not believe a wholesale change to our patent granting system is needed to address this.)

One of the biggest loopholes of the U.S. patent system that patent trolls exploit, and which allows patent trolls to have a good deal of leverage over small business, is the lack of specificity and disclosure in the pleadings required by a plaintiff to file a patent infringement claim.  Here is a great short summary:
"According to the Federal Rules of Civil Procedure all a patent owner has to do is assert the number and title of the patent and then vaguely say that one or more claims are believed to be infringed." See IP Watchdog to read their whole article regarding patent trolls.
I believe patent trolls would lose a lot of their undue leverage in threatening a patent infringement lawsuit if they were required to include much more specificity at the time of filing.  For instance, I would like to see the following required to be shown at the time of filing in order for a plaintiff to file a patent infringement lawsuit:

1) Specific claims that are infringed must be asserted;
2) Claim charts mapping the specific claims asserted to the accused infringing product;
3) Claim interpretation arguments must be supplied explaining the support for such and how the claims apply to the product (i.e. Markman briefs must be submitted at the time of filing). 
My theory is that the leverage of the trolls exploiting these loopholes in the patent system will be reduced greatly if they have to show all the details of their theory of their case from the start, while parties with very legitimate claims for infringement will not have as many reservations about putting forth this specificity.  Also, I believe this serves the public interest by having a greater disclosure of information.

Further, another change in the law that would help would be:
4) The claim interpretations and arguments put forth by the patent owner will have estoppel attach immediately, whether or not the claims have been fully and finally litigated.  That is, the patent owner will be limited to the claim interpretations put forth during the pleading of the infringement claims and will be limited by such in future lawsuits regarding the same claims.

I have seen some discussion about these issues before at CLEs and in some articles, (I only found these articles with a quick search: here and here, paid content though-sorry).

Let me know your thoughts on this.



  1. How about getting the ITC out of patent disputes when both parties to a dispute are within the reach of US courts? It's one thing to seek an export ban against a product who refuses to appear and/or claims that it doesn't market its stuff in the US (and doesn't know how or why infringing products are being imported); but the current MO is to use the ITC in the same fashion as East Texas is used. And unlike the courts, the ITC seems far less well-equipped to adjudicate this sort of thing.

  2. I should say, a product whose MANUFACTURER refuses to appear in US courts...