By Adam J. Handelsman, President & Founder, SpecOps Communications
Before we even broach the crux of this op-ed, a simple analogy will provide some enlightenment. In the world of tort law there is nuisance litigation and there is legitimate litigation. The same holds true in realm of intellectual property aka IP, and in every industry or sector there are always a few bad apples who tarnish the entire bunch. That said, the term in question, “Patent Troll,” was originally coined in 1993, but was made popular in 2001 by Intel’s Legal Counsel, Peter Detkin when he was responsible for enforcing the company’s IP portfolio. The irony is that Peter Detkin and his new company, Intellectual Ventures would now be considered a Patent Troll. The term itself is used to describe companies or persons that file patent enforcement lawsuits against one or more alleged infringers in what is deemed in an aggressive or opportunistic way. This is misleading because “Patent Trolls” are said to have no intention or ability to manufacture or market a patented invention. Furthermore, on today’s corporate playing field, the definition of the term “Patent Troll” changes dramatically depending on who’s using it, defining it, discussing it or asking about it. To properly move forward readers must be familiar with another term; the NPE or Non-Practicing-Entity which is an organization that partners with IP holders, both large and small companies, universities or inventors and helps them assert and license patents. In layman’s terms, the NPE partners with an IP holder and helps them monetize the patent.
To better understand the actual “Patent Troll” term, it is imperative to understand the fundamentals behind IP litigation. Basically, there are two distinct parties in all intellectual property battles; the creator and owner of the IP (the inventor), and those who steal IP for financial gain (the infringer). Let’s also remember, since the dawn of time there has always been someone bigger and stronger stepping in and seizing control of someone else’s innovation. That said, here are a few examples, and you can decide for yourself.
- Thomas Edison, Philo Farnsworth and Marconi were all inventors. Is it fair to say that they should be compensated for their innovations and patents if the patents are found valid and infringed?
- Should corporations like Apple, IBM, Samsung, Microsoft and Motorola —public or private— who invest years and millions of dollars into R&D be compensated for patents if they are being used by others?
- Should universities and colleges be compensated for innovation stemming from their labs, minds and access to technologies because they do not manufacture anything?
- Should NPE’s be paid if another company is found to infringe upon the valid patents of their partners?
- Is it a far fetched request to require entities who have infringed IP and use it to benefit themselves be forced to pay a license fee for such access?
There are so many cases over the years that further support the fundamental principles of IP. Thomas Edison was a brilliant man, but he did not manufacture or sell anything? No, and if you believe the current Troll philosophy, neither he nor his estate should be rewarded for his innovations. To protect the AM Radio profits, RCA unleashed an army of lawyers, lobbyists and influencers to combat Edwin Howard Armstrong’s FM Radio. This battle eventually left Armstrong so distraught and penniless that he committed suicide in 1954. Is the inventor of a great new technology stifling innovation or is the large corporation at fault for hindering a new technology from disrupting its profits? And, we all remember that Philo T. Farnsworth created the television, but very few know that he fought the entire radio industry and its combined resources in an effort to prevent this invention from coming to market. Over and over the same the question remains… did any of these inventors stifle innovation? Because all of those aggressive entities rained down lawsuit after lawsuit affirm that they did.