More Confessions of a Patent Troll
Yesterday, we introduced you to "Sharon Underbridge," a self-described "patent troll." Today, we have five more confessions from Troll Underbridge. (Yes, she chose that name intentionally.)
Let's jump right into it, so you can debate whether patent trolls are evil, or just misunderstood.
Confession 1: The targeted technologies for trolling have shifted.
The fact that these are not competitor suits creates unique challenges with respect to developing a robust Rule 11 basis and an understanding of the potential licensing value of the patent, Sharon explains. Because of this, as a general rule, publicly accessible technical documents or sources of proof (i.e. user manuals, white papers, etc.) + readily accessible financial information regarding the market size = easily "exploitable" technology. (Please note: the term exploitable was mine, not hers.)
Confession 2: Patent trolls aren't "shaking down" companies.
Sharon says the most common misconception is that patent trolls "shake down" defendants with worthless IP, which in turn forces defendants to pay a license or pay to fight. Rule 11, she explains, precludes that kind of frivolous litigation and rightfully allows for sanctions upon a plaintiff undertaking this kind of tactic.
Confession 3: Patent rights are property rights.
According to Sharon, this is the core concept that everyone gets hung up on. She offers this comparison: If looters moved into your grandparents' empty summer house and rent out rooms as a B&B, everyone would agree that the looter infringed on Granny and Paw Paw's property rights; most would agree your grandparents would be entitled to some portion of the rent. For some reason, however, when we talk about this same concept in terms of intellectual property people don't reach the same conclusion.
Confession 4: Patent trolls are afraid of S.H.I.E.L.D.
No, we're not talking about Joss Whedon's show for ABC. The S.H.I.E.L.D. that strikes fear in every patent troll's heart is the Saving High-Tech Innovators from Egregious Legal Disputes (SHIELD) Act, sponsored by Reps. Peter DeFazio and Jason Chaffetz. While our friends over at the Electronic Frontier Foundation are encouraging people to support the S.H.I.E.L.D. Act, Sharon says, "I think anytime the government starts to take an interest in your livelihood that panic is warranted."
Confession 5: Trolls care about SCOTUS cases, too.
When we asked Sharon for a prediction in the Supreme Court's Myriad gene-patenting case, she responded:
For Myriad, I could see this going either way. I think a lay person's gut reaction would be that genes should not be patentable. However, whether you realize it or not, the bigger question here is why do we let people protect their ideas and exclude others from using them? If it is truly is to reward scientific progress and incentivize research then I can see SCOTUS being persuaded that genes might be patentable.
- Federal Circuit Still Says Genes Can Be Patented (FindLaw's Federal Circuit Blog)
- 'Porn Pirate' Lawsuits a Lucrative Niche for Porn Copyright Attorney (FindLaw's Technologist)
- Ten Days to the AIA: Three Things to Know (FindLaw's In House Blog)