As used in the press, the term “patent troll” is clearly pejorative: they are lurking to attack the unsuspecting good guys who are trying to get across the bridge to do their business. In this context, the activities of patent trolls must necessarily be bad for business. The argument here is that a company that is actually making a technology or product should win out against a patent holder that does not seek to sell that same product or technology to the public. In this scenario, companies like AudioFax should be punished for having the foresight to protect their good ideas and enforcing their patent rights against companies that came up with those ideas at a later date and seek to commercialize those ideas.
But taking this contention to its logical extension, any person or entity that does not immediately plan to introduce a product or technology into the market should not be able to fully enforce its patent rights against someone who does seek to bring that idea to market. This group (which accurately reflects my client base over the years) would include universities, entrepreneurs with good ideas but limited means and any company that seeks to protect its R & D investment from its competitors through patents. Obviously, this is an absurd result.
Those arguing against patent trolls may have been on the receiving end of a “licensing offer letter”. As a senior corporate patent lawyer, I received several of these and receipt of such letters did complicate my practice. Handling of these letters took me away from developing patent rights for my employer that I would have been very happy to license to or enforce against others regardless of whether or not my company was making the product covered by that patent. In other words, I would have enthusiastically sent a licensing enforcement letter if there was a legitimate business purpose for doing so, but it was not pleasant to be on the receiving end of these letters.
An objective view of the activities of that define the business pain caused by patent trolls should reveal a less sinister picture. That is, a patent troll is nothing other than an entity that had the business acumen and foresight to understand the power of the U.S. Patent system to create value for those who execute on this opportunity. As a society, we have decided that those who choose to tell the world what cool ideas they have come up with, as opposed to keeping those ideas secret, will be rewarded with exclusive rights for a limited time. If you don’t like it, call your Congressman. In the meantime, however, you can sit and complain about the problems that patent trolls supposedly cause to your business, or you can get on the bus and develop and execute on a value creation directed patent strategy.
When your company executes on a patent strategy that is aligned with your business plans, there should be little need to worry about patent trolls because your management will know under which patent and technology bridges patent trolls are lurking. Also, your company will be able to develop and enforce patent rights that have affect your competitors; that is, your company could be seen as a patent troll to others. However, I am sure your C-level management will not refer to your company as a patent troll but, rather, as a smart and modern business.