Lions and tigers and bears and trolls! Oh My! There’s an (IP) Monster under the bed….

As children, most of us were exposed at one time or another to the concept of ‘there’s a monster under my bed’. This has been the subject of books and movies, and in its now classic movie, Pixar’s Monsters, Inc. managed to make a blockbuster movie based on this age old fear, but in comic fashion, turning it on its head.

The expression ‘birds of a feather flock together’ usually refers to people or groups having common interests banding together. Legends featuring trolls may be found in many mythologies, and ‘troll phobia’ – apparently a much more recent development –  is defined (see here) as “Fear of driving over bridges due to the belief that trolls live underneath them.” Trolls and monsters seem to be very much ‘birds of a feather’.

I’ll explain what I mean.

According to Wikipedia, the term “patent troll” was used in 1993 “to describe countries that file aggressive patent lawsuits”. Since then, “troll” has become a pejorative term used to describe any patent owner who “unfairly” sues any third party “innocently” going about their business (of patent infringement). When is such a lawsuit unfair? When the patent owner doesn’t actually produce anything useful. When is the third party “innocent” (i.e. being sued unfairly)? When he, in contrast to the owner of the patent, does produce something useful.

So far, none of this is news. People have been complaining – loudly – about patent trolls for well over a decade. And they haven’t just been complaining about it: they’ve been taking action! And I mean REAL action!

By ‘real’ action I mean they have proposed legislation that would assist the courts in pushing back, that would enable the ‘innocent’ party to defend himself, and that would increase the risks in an unfair patent suit (i.e. one started by a so-called patent troll).

And yet, after all of the headlines, the complaining, and even the involvement of the office of the President of the United States in the form of President Obama to stop the patent trolls, nay, slay them (see Wired.com “History Will Remember Obama as the Great Slayer of Patent Trolls”), here they are…. alive and well.

But.

They seem to have disappeared, or at least gone to ground. Few seem to be talking about patent trolls these days. Especially this year, in 2020. Now, you might say that this is due to COVID-19. And you might be right. After all, when there is a pandemic going on and major economies – especially that of the US – are undergoing huge upheaval, who has time for the patent trolls? Isn’t taking measures to beat the pandemic and get the economy working again way more important than the problem of patent trolls?

But one minute…. If invention is what drives an economy… and patents are meant to help innovation by enabling inventors and their employees to obtain valuable IP rights so as to capture their innovative markets by keeping competitors out, by threat of being sued for patent infringement… and patents, as property rights which can be sold and licensed, have value due to their being usable to sue infringers… then if some nasty, unproductive folks (i.e. trolls) are out there using these property rights in a way that is unethical…. then shouldn’t the patent troll problem be dealt with? Especially now, when we’re trying to stimulate the economy!

Unless… unless we actually realize (as adults who no longer believe in monsters under beds any more than we believe in trolls hiding under bridges)  that patent trolls are using the legal rights that they have purchased in the way that the law permits, and that it is precisely this right (i.e. to sue) that gives patents their value!

So maybe the problem isn’t quite as great as it once was, when we didn’t have the real, major problems that we have now, all around the globe, in health, economy and society at large.

Maybe it’s just so much “Monsters under the Bed….”

Oh. And if anyone ever gets really serious about tackling the perceived IP trolls, you might want to think about introducing a ‘working requirement’ into the law governing patents. That would be a sure way to send the so-called trolls out to work.

Until then…. Boo!