Thursday, May 08, 2014
A Taxonomy of Trolls
I want to start with a little story - I'm at an academic roundtable in the land of the snowbird, so please don't take offense. Everyone knows that old people drive slowly. They keep young, vibrant folks from getting to where they want to get to, clogging up the roads with their big old cars. No one would argue that this is a problem that needs to be solved, so let's pass laws to get these old people off the road, right?
The legislators propose a set of laws to fix the problem:
1) Old people are no longer permitted to drive; and
2) Because it isn't easy to identify an old person without looking at who is driving, any person driving a late model Lincoln Towncar or any similar type vehicle is also prohibited from driving.
3) There is an exception for old people who are driving to work at soup kitchens or other charitable activities are allowed to drive, no matter how slowly and even if they impede the driving of other people.
If you don't see any problems with this story, then you're probably OK with the pending patent troll reform bills...but I'm not.
Patent troll legislation looks an awful lot like the laws above. Patent trolls purportedly get in the way of companies that are making and selling stuff, most egregiously by bringing nuisance litigation suits or sending fraudulent cease and desist demand letters. To deter this trollish behavior, many reform provisions have been proposed. By way of analogy to the old person driver laws above, if you don't make something, you are a patent troll subject to any number of limitations on your behaviors. If we can't tell whether you make something, you are a patent troll subject to said limitations. There are some people who don't make things, like universities; however, we like them, so they aren't subject to the limitations.
What's going on here can be attributed to cognitive biases - most prominently, the stereotyping or grouping bias, whereby certain characteristics are imputed to a group without regard to individual differences among the members of the group. Although the term "cognitive biases" usually carries negative connotations, cognitive biases actually help us get through life in an age when we are constantly bombarded with information - so much information that it is not possible to process it all. So instead of simply giving up, our brains use various heuristics and cognitive biases to lump the information and process it quickly.
Similarly, it is very difficult to craft legislation that can take into account all possible information - and so legislators need to take shortcuts and create groupings. But pending patent troll reform is simply too broad and ignores the fact that many of the behaviors that are driving the legislation are not captured by the stereotypical definition of patent troll. There are old people who drive fast (and young people who drive slow and impede traffic). And there are companies that do not make things that do not engage in the harmful behavior (and companies that make things and also file nuisance lawsuits, etc.).
I have begun a research agenda that is looking behind the broad definition of "patent troll." The overarching theme of my project is to develop a taxonomy of patent trolls, looking behind the curtains to tell the stories of these different groups. A few empirical studies have broken the group of patent trolls into types, but only for the purposes of counting. I, instead, want to study the entities behind the label, to tell the stories of the entities, and to compare the actual stories to the fairy tales and fables that are being built up around these patent trolls. The narratives, in many cases, will illustrate that the problems that Congress is looking to solve are not present for certain classes of these trolls.
My first stab at digging into the taxonomy of patent trolls is to look at formerly manufacturing entity. In a piece forthcoming in the University of Connecticut Law Review (that I'll talk more about shortly), I provide case study data on these entities that used to make something but for any number of reasons no longer do. While they fall squarely in the definition of patent troll (an entity that does not make things), they are not the same as other types of patent trolls. Are they engaging in the purportedly bad trollish behavior? If not, why are we comfortable with including them in the broad patent troll category? Maybe we shouldn't be.
As my guest term here goes on, I'll tell you more about the taxonomy I'm laying out, as well as giving you a peek behind the curtain at the stories of these different types of patent trolls. (And I'll try not to offend old people any further!)
I'm reminded a little bit of HLA Hart's concept of the core versus the penumbra. The pure avatar of the patent troll is Project Paperless LLC* and their descendant shell companies: dubious patent (check), no history of making anything (check), targeting small time users rather than manufacturer of the allegedly infringing products (check), send out thousands of demand letters and never follow though on litigation (check).
While I certainly get not wanting to throw the baby out with the bathwater, if the answer is that it's impossible to stop this sort of thing -- well that's just not an acceptable answer to a lot of people.
Posted by: brad | May 9, 2014 12:02:11 PM
Defining a patent troll as an entity that holds patents but doesn't manufacture isn't a random definition. The patent system is so broken that pretty much every manufacturer has to violate patents (or at least, is plausibly enough a violator that they can be forced to spend millions defending themselves in court). This doesn't cause problems because since every manufacturer violates them, anyone who sues for patent violation can be sued themselves, creating a balance that prevents this from getting out of hand.
Someone who has patents but doesn't manufacture is outside this balance and can freely sue at will, taking advantage of the broken patent system.
If an entity formerly manufactured but doesn't now, they're vulnerable, for a while, to lawsuits based on the actions they took while they were still manufacturing, so they wouldn't count as patent trolls. If there is a time period where they no longer can be sued based on what they did when they were active, but where they can still sue others based on the patents they hold, and where there's a serious threat that they would so sue, they should count as patent trolls.
Posted by: Ken Arromdee | May 9, 2014 2:21:54 PM