From the Hill

From the Hill—Combatting So-called Patent Trolls: Initial Efforts Fall Short, New Efforts Multiply

Hayden W. Gregory

©2013. Published in Landslide, Vol. 6, No. 2, November/December 2013, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

In the 1969 film Butch Cassidy and the Sundance Kid, the hapless train and bank robbers Butch and the Kid sound the repeated refrain “Who are those guys?” as they attempt to flee across the vast U.S. western highlands, and invariably see in the distance the same relentless pursuers still following them each time they look back to assess the situation. The pursuit of so-called patent trolls calls to mind that image, albeit in something of a reversal of roles, with the question referring to the pursued and not the pursuers. “Who are those guys?” emerged as a defining question early in the efforts to fashion an appropriate legal response to the troll problem. It therefore follows from the centrality of the question that the inability to find a workable answer to it means that the pursuit of an effective legal response is yet to be successful.

A number of terms have been invented to identify and describe the persons and practices that abuse the patent system by the manner in which certain patents are obtained and enforced. “Troll” clearly has seniority in this regard. As far back as the March 2006 U.S. Supreme Court oral arguments in eBay v. MercExchange, Justice Kennedy and eBay counsel Carter Phillips engaged in a jocular exchange concerning the derivation of the term “troll” as used in the context of patent practice: is it the mythological creature from Scandinavian folklore living in caves or under bridges, or the practice of running a long baited line behind a slow moving fishing boat? The latter is probably the better fit, since it seems to invoke a business practice frequently identified with the offenders in question: the engagement in a fishing expedition to acquire patents, not for traditional economic exploitation but solely for questionable enforcement activities, including extortionist licensing and litigation tactics.

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