Adverts launched to fight patent troll “narrative”
The Innovation Alliance, a US group representing patent owners, has launched an advertising campaign to challenge the “irresponsible patent troll narrative”.
Beginning on Monday, the multi-million dollar campaign, Who’s Trolling Who?, will feature in multiple US states, the group said.
It is a response to the misuse of the term “patent troll” by tech companies and large corporations, the Alliance said, companies which are using fringe abuses of the patent system to try to weaken the entire system.
“While highlighting the behaviour of the relatively few patent holders who game the litigation system in patent cases for their own gain, they wilfully ignore the vast benefits that patents and the patent system have delivered to the US economy throughout American history,” said Brian Pomper, executive director of the Innovation Alliance.
He added: “By doing so, they are attempting to seed public opinion in favour of any measure to combat the ‘patent trolls’, irrespective of whether it would weaken patent rights for everyone, undermining the foundation of the patent system and ultimately the US economy.”
Several bills seeing to restrain patent trolls, otherwise known as non-practising entities, are before Congress. The latest instalment – the Innovation Act – was endorsed by companies including Yahoo at a recent hearing in the House of Representatives.
While the Alliance sympathises with the concerns of consumers and “mom and pop retail stores” targeted by litigation abuse, Pomper explained, any legislative reforms should be balanced.
“Where there are abuses, we should adopt targeted measures to address those abuses, but we need to engage in a fact-driven debate. The stakes are far too high to be ruled by emotional reactions to the ‘patent troll’ narrative.”
As part of the campaign, the Alliance is using the website savetheinventor.org as a portal for members to send messages to members of Congress. On the site, several measures for increasing patent quality and reducing frivolous litigation are listed, including allowing the USPTO to retain all of its users’ fees (this has been proposed in Congress).
Steve Routh, partner at Orrick, Herrington & Sutcliffe LLP, said he disagreed with the Alliance’s views.
“The concern is completely misplaced – I don’t know anyone who opposes the patent system. The campaign seems to be saying that people shouldn’t be against the patent system and patents, but the problem of trolls doesn’t relate to that.”
While the Alliance says there are only a few bad apples, said Routh, a significant number of plaintiffs he confronts while representing technology companies are trolls.
But Christine Lehman, partner at Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, welcomed the ad campaign.
“I have been waiting for something like this to materialise. The debate has been a little one-side for the last couple of years and while there are people abusing the patent system – going after ‘mom and pop’ stores – the outrage about that is being carried over to larger criticisms of the patent system. Some of those are unfair.”
And there are existing tools for dealing with trolls, noted Michael Oblon, partner at law firm Perkins Coie, who said Chief Judge Rader recently urged Congress to be cautious about passing anti- patent troll bills, as the judiciary should be able to handle them on its own.
"Existing laws give judges a lot of discretion – over damages available if the defendant is found to infringe and making losers pay if the case is frivolous. If Congress over-legislates, it could turn the system into one in which if you can’t show you are practising a patent, then your patent has no value.
“That would be a dramatic change," he said.
