If someone sues your company for infringement and your lawyer refers to them as a “patent troll,” that makes sense. However, just because he calls them a name doesn’t make it true. Just because your company’s lawyer calls someone a name doesn’t mean that you aren’t infringing. Calling someone a name and then believing in your own slur is like a soccer player taking a flop.
A flop is a farce that, although legal, is bad for the sport. Using the term “patent troll” is understandable, but it is also harmful to the patent system.
I support a strong patent system. I don’t support name-calling.
A strong patent system is good because inventors are the backbone of our economy and therefore the backbone of our country. It is also important to have a strong patent system because the only way to defend a patent is take someone to court, and court is such an expensive option that inventors should be fairly assured that they are going to win when they venture there.
The problem is that the patent system has eroded. Inventors no longer have that assurance.
Part of that erosion has been because of the term “patent troll.” The term wasn’t developed out of thin air: It was the invention of a lawyer in order to attack someone that was suing his client in 2002. It was a catchy phrase, and like the way that inappropriate or off-color jokes can go viral, so did the scourge of the phrase “patent troll” on the innovation ecosystem.
I know one inventor, Paul Morinville, that had his innovation run over by these changes that has directly faced the power of the term “troll.” Paul’s patent portfolio makes up some key components to large corporation human resource software that the biggest companies use today. He developed it with the help of his then-employer to help them manage rapid growth. He solved a problem that now lets our economy grow faster.
However, when he attempted to travel the country and inform politicians about what happened to him, he was called names and ridiculed. The politicians called Paul names, insinuating that he was a patent troll, taking money from the trolls, and just there to make the politicians look bad. They bullied him.
Since that time, many of the politicians have warmed to protecting inventors (and Paul), but it took a calm and persistent presence from Paul for years to reach that point.
Another inventor, Dan Brown (the inventor of the Bionic Wrench), has also faced the frustration of trying to defend his intellectual property, and unfortunately for him, he is still in that fight. Dan was selling his wrench to Sears when suddenly they started selling a wrench that was amazingly similar. In fact, after a protracted fight, Dan’s Loggerhead Tools was awarded $6 million. However, his story still hasn’t ended, and he is still fighting to protect his product.
Fortunately, under the Trump administration, things have started to change for the good in the direction of the inventor. But the changes are slow for inventors that are currently fighting for their product’s lives. President Trump’s director of the USPTO, Andrei Iancu, is focusing on promoting inventors and fixing the system. He is trying to change the way we talk about inventors, trying to not use the term “patent troll” — in essence, trying to remove the soccer flop from his profession. President Trump has also pushed his administration to protect some of our biggest innovators. And he has very publicly made it known that American innovation is important to him.
But even if President Trump and Iancu are successful, there are still going to be problems in the system.
In one ongoing case where the alleged infringer is attempting to hide behind the “troll” slur, one inventive company is being forced to fight with everything they have just to defend their own property and their honor. EagleView was founded in 2008 to develop products that produce 3-D models from aerial images. In 2014, a competitor called Verisk allegedly starting infringing on Eagleview’s technology. Instead of fighting the allegation in court, Verisk employed every tool in the toolbox to undermine EagleView, including attempting to use the so-called “patent death panel” (only to be rejected 13 times) as well as joining an association “dedicated to fighting patent trolls,” when in reality, they are fighting to undermine intellectual property rights.
Now, I have said this before, but I am not a judge. I am not a doctor. I am an economist. I don’t know how to prove if a company is infringing or not. However, I do know that a guilty party often attempts to find ways to undermine their opposition.
In all these described cases, the patent infringer took the flop. Fortunately, Trump likely hates soccer flops as much as anyone — in business and in sports.
Charles Sauer (@CharlesSauer) is a contributor to the Washington Examiner’s Beltway Confidential blog. He is president of the Market Institute and previously worked on Capitol Hill, for a governor, and for an academic think tank.
