Tuesday, May 13, 2014
Troll Taxonomy - Why Does It Matter?
It's a question that always evokes a love/hate relationship for me when I hear it at academic conferences or works-in-progress events...so what? It's painful, but if I can answer it, the paper will always be more valuable. (You think I would have caught on and started answering the "so what" question preemptively...but I'm a bit thick sometimes.)
Anyway, going back to the idea of a troll taxonomy that I mentioned last week...so what?
Why does it matter what kind of patent troll you are? As one commenter noted, if you need to throw the baby out with the bathwater to end the types of litigation abuse that are associated with trolls, then so be it. Is this just a useless exercise in classifying, counting, sorting, and grouping?
Here's why it does matter. We already break out certain types of non-practicing entities -- for example universities. Why? Because we are willing to accept some non-beneficial behavior (patents being held on inventions that are not commercialized by the patent holder) to receive other beneficial behaviors that this particular type of troll -- universities -- are good at (upstream research, medical research, etc.). My argument is that other types of patent trolls might similarly provide beneficial behaviors that outweigh (or at least counteract) the non-beneficial behavior of holding patents without practicing the technology. Without looking more closely at these trolls, it's hard to know what behaviors they engage in. And that's where I step in.
Notice, though, that I'm not pointing to the non-beneficial behavior of vexatious litigation or sketchy cease-and-demand letters, because those behaviors are not how we sort patent trolls now. We look only at whether or not they practice the patented technology - so when we're doing the beneficial/non-beneficial calculus, we should be using the non-beneficial behavior that landed the patent troll in the category to start with. If Congress and the courts want to start classifying patent trolls based on their litigation behaviors, then the conversation would be different and maybe a taxonomy wouldn't matter. However, as long as patent troll reform starts from the grouping of non-practicing entities, a troll taxonomy does matter.
Your posts seem to assume that patent-troll reform is aimed only at truly illegitimate NPEs, and that beyond thwarting these entities, the goal is to leave the current patent system unchanged. This assumption seems off. Many reformers believe more generally that patents are too easy to obtain and assert, and that so-called patent trolls are just a particularly egregious manifestation of a larger problem. Accepting that premise, the likelihood that reform will reach beyond the most abusive NPEs and make patent enforcement somewhat more risky or expensive for legitimate entities is, at worst, not a major concern, and, at best, a feature rather than a bug.
Posted by: AF | May 13, 2014 11:34:41 AM