Week 5 EOC: Patent Trolls

Back in 2010, The Wall Street Journal published an article titled, "New Breed of Patent Claim Bedevils Product Makers", by Dionne Searcey. The contents therein give face to individuals, commonly known, to the business and patent law community, as Patent Trolls. These individuals range from the seemingly concerned consumer (as most proclaim to be), to companies deftly coined “patent assertion compan[ies]” (pg. 137, Stim). At any rate, they are in the business of filing suits against companies for patent infringements, even though they are “not in the business of making or selling anything” (pg. 137, Stim). Aside from this glaring disparity, they are an welcomed nuisance to companies because “they seek licensing fees that are disproportionate to the patent’s value, often because they are well funded and can afford litigation costs” (pg. Stim).

 This seemingly petty practice, as discussed in the article, has launched hundreds of suits from “concerned consumers” and investigative patent infringement agencies, to intentionally rummage through the shelves to find expired patents (on a variety of goods) in order to file with the courts. One might counter that this practice of “gotcha” tactics to ensure products do not have falsely marked or expired patent numbers on them, is a service to consumers and competitors alike; however, this trend of ‘suing anyone for anything to get rich quick’ has got to have some limits. Litigation is getting out of hand and bogging down the judicial system with trivial claims in most instances.

To the chagrin of many companies, there is an expectation to maintain 100% control over tracking items that have expired markings. This is an altogether task and not a realistic one at that. Too often is the case where products are produced with these markings; stored in warehouses, where they may be purchased/stored by a third party for a multitude of years, and then the risk of violating patent laws if purchased after the time stamp of the patent. This isn’t practical. A solution to keep from having to run these items down and face litigation is to simply avoid the markings on the product, but then that kind of defeats the purpose of a patent in the first place. I contend that there should be a ‘grandfather clause’ on items that are sold/present with expired patent markings. As long as it was already distributed, then it is safe. Otherwise, a potential competitor only need to look up the currency of a patent to see if a new patent is an option.

In all, the patent trolls need to be banished back under the bridge, as in the Billy Goats Three, and allow consumers and competitors alike, to do their homework and research the validity of a product patent.

Source: Patent, Copyright & Trademark: 12th Edition, March 2012, By Richard Stim