Here at Patentology, we are not inclined to attach the ‘t-word’ lightly to patent litigants. There are two main reasons for this.
Firstly, the term ‘patent troll’, as a pejorative, was largely promoted by big, wealthy corporations ‘outraged’ by the assertion of patents by individual inventors, small businesses, and ‘non-practicing entities’ (NPE’s) which did not actually have competing products in the marketplace. The problem with such patent-holders, from the perspective of the big corporation, is that they cannot be ‘bought off’ with cross-licensing deals based on the corporation’s large patent portfolio. Credit for popularising the term ‘
patent troll’, at least in its current form, is widely attributed to Peter Detkin in around 2001, when he was General Counsel at Intel, which was defending a patent infringement suit brought by TechSearch LLC. Apparently ‘extortionist’ was libellous, whereas ‘troll’ was just a little bit cute! Intel’s position remains that pretty much any NPE (including Universities and public research institutes) is fair game to receive the epithet ‘troll’, unless they play by Intel’s rules.
Our second reason for reluctance in applying the term ‘troll’ is that we believe there is a legitimate place in the patent system for patent holding companies. It is self-evident that individual inventors and small entities will often not have access to the capital necessary to commercialise their inventions, or to assert their patents against infringers. The fact that there are companies willing and able to acquire intellectual property from these minor players provides a financial incentive for small entities to pursue innovative ideas, and to protect them via the patent system, even though they do not necessarily have the resources to take them to the next stage themselves.
This does not mean, however, that some NPE’s are not worthy of the name ‘troll’. In our view, VS Technologies, LLC, which filed suit against Twitter, Inc on 18 January 2011, is a patent troll, pure-and-simple!
