Patent Law – The Patent Troll Update: News and Strategy

Patent lawyers have known about patent trolls for a while, but it’s only been lately that the mainstream media and public at large have paid real attention to the existence of and effect of patent trolls.  Therefore, as an ongoing service, this blog will keep periodic tabs on developments in the patent troll world and strategies to respond to patent trolls.

First, some basics.  There’s no clear definition of a patent troll, but in general patent trolls to us are persons/entities who are trying to enforce patents, often vaguely-worded patents, against alleged infringers with products in the marketplace (we generally exempt universities from this definition, although arguably they act like patent trolls at times too).  These persons/entities have for the most part not manufactured or marketed any products using the patented invention, and patent troll entities have often been formed for the purpose of being a holding company for filing lawsuits or seeking licensing fees.  An alternative name for patent trolls, non-practicing entities (NPEs), has been gaining in popularity in legal circles but the mainstream media still prefers the catchier “patent troll” term.

Why should we care about patent trolls?  Because patent trolls reduce companies’ incentives to innovate, as described in this Boston University School of Law working paper.  For a less academic perspective, see this article.

With that in mind, here’s some recent developments in patent troll news and strategy: reported on Article One Partners, a company that provides research to look for  prior art (public information that is relevant to the validity of a patent): the interesting thing about Article One Partners is that it uses “crowdsourcing” via its worldwide network of researchers to find prior art.

Felix Salmon of Reuters noted that even with better prior art research, the procedure to invalidate patents that have already been issued is so cumbersome that patent infringement defendants often don’t get an adequate opportunity to properly challenge the validity of the patents.

Facebook game fanatics, Ars Technica reports Facebook and Zynga (of Farmville fame) have been sued by what appears to be a “shell company” for patent infringement.  The blog observed this is just another example of the problem with issuing software patents (a variation of what we reported in our blog post on the Therasense case on business method software patents).

The Wall Street Journal profiles prominent patent defense lawyers who decide life is better representing NPEs.


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