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How Patent Trolls Stifle Innovation

The latest figures on lawsuits filed by patent assertion entities (PAEs) reveal a frightening trend that suggests this activity will remain a threat to American high-tech innovation and competition in 2013.

In the first 11 months of 2012, PAEs initiated 61 percent of US patent lawsuits, after initiating 45 percent of them in 2011 and 19 percent in 2006, according to a recent study conducted by Colleen Chien, a law professor at Santa Clara University.

PAEs, a.k.a. patent trolls, acquire patents for the sole purpose of filing litigation to make money, rather than using the patents to develop goods and services. This activity costs businesses time and money, and research shows that small businesses are more likely than others to be targeted by this unscrupulous practice.

Chien presented her research at the Patent Assertion Entity Activities Workshop hosted last month in Washington, D.C., by the Federal Trade Commission and the Justice Department. She said that large companies such as Google and Apple see their fair share of PAE lawsuits, but approximately 40 percent of startups that have raised $50 million to $500 million have been sued by PAEs, and around 20 percent of companies that have raised $20 million to $50 million have suffered a similar fate.

In an email to me, Chien expressed her concern for small high-tech firms, which would have a harder time than others absorbing the impact of a lawsuit.

In my survey, 40 percent of small companies/startups reported a significant impact — like changing the product, delay in hiring, impact on fundraising — as a result of a patent lawsuit. The majority (55 percent) of unique PAE targets make less than $10 million in revenue.

By threatening to crimp good old-fashioned American innovation, the growth of PAE activity is turning the patent system on its head and exacting a hefty financial toll. This occurs when companies that don't produce anything turn their acquired patents into a weapon by initiating lawsuits that force companies to fork out money to defend their intellectual property or settle out of court.

In fact, a study published in July by Professor Mike Meurer and Law Lecturer James Bessen at Boston University School of Law reveals that the costs of PAE disputes more than quadrupled from 2005 to $29 billion in 2011. During that time, the number of unique companies that defended their patents against PAE-initiated lawsuits rose more than 50 percent to 2,150.

What is contributing to the increase in patent troll activity? For one thing, this activity is legal. Furthermore, PAEs can bring a lawsuit against several entities that hold or use a patent. In fact, according to Chien's study, 76 percent of PAE defendants are sued by a PAE that has named 15 or more defendants over two or more suits. This raises the chances for PAEs to win settlements and capture economies of scale.

Another factor advancing this business model is that companies hit with a PAE suit often find it best to settle out of court instead of paying the legal fees to defend themselves. PAEs are also assisted by lawyers who work on a contingency basis, which helps delay costs until a settlement.

For the high-tech industry's sake, and to help clear the way for innovators to create unique products and services without the threat of pesky lawsuits filed by entities that don't produce goods and services, 2013 will hopefully be the year PAE activity is stopped in its tracks.

Certainly, our high-tech inventors, the products they develop, the businesses they build, and the economy in which they operate deserve a better system than one that lets PAEs run roughshod over talented innovators. One way to fight back is to encourage large companies to work with startups to help them fight PAE-initiated litigation. Something has to be done soon, and I'm sure we can all agree that this matter needs the high-tech industry's undivided attention in the year ahead.

14 comments on “How Patent Trolls Stifle Innovation

  1. therealGman
    January 5, 2013

    I think the patent laws need to be changed immediately so that only the original patent holder has legal right to own the patent througout the full protected time frame without actually manafacturing a product based on the patent.  If they sell the right to the patent the new owner should have 12 months to use the patent to produce something or the patent goes to the public domain.  Licensing the techology to yet a third party does not count.  That way PAE's have no incentive to exist.  If you develop a truely novel idea with the intention of producing a product you still get the full protection.  If it's just for the purpose of reselling, then buyer will have a much more limited time to use it or lose it.

  2. Clairvoyant
    January 5, 2013

    Have PAEs always existed, or are they a development of how business is done now-a-days?

  3. The Source
    January 5, 2013

    therealGman

    I understand that there is serious talk about developing new measures to curb PAEs and that the American Invents Act of 2011 has a provision that limits the number of defendants PAEs can sue in a case. 

    For more on that issue read this explanation.

    http://www.sgrlaw.com/resources/trust_the_leaders/leaders_issues/ttl31/1779/

    Thanks for your comments.

    Nicole

     

  4. The Source
    January 5, 2013

    Clairvoyant,

    Apparently, the term Patent Trolls became popular in the early 1990s to describe this aggressive type of patent litigation. Obviously, since then the practice has become much more popular and lucrative for those filing these lawsuits.

    Thanks for reading my article.

    Nicole  

     

  5. FLYINGSCOT
    January 6, 2013

    Are the “no win no fee” PAE layers any different from the ambulance chasing lawyers?  I oftentimes also wonder what value a patent portfolio has for a company, other than as a bargaining chip when horsetrading begins.

  6. Barbara Jorgensen
    January 7, 2013

    There was a time when PAEs were seen as championing the underdog. This goes back a ways, but the Lemelson Foundation was one such organization that found and help defend patents, but I think they have also been involved in activity for profit. The term used was “submarine” patents, which sounds a lot like trolling. Is there a difference?

  7. EBNBlogger
    January 7, 2013

    First of all, over the years, the function of the Patent Office has changed.

    Why is it that the feds will protect copywright law, but not patent law?

    They used to defend both, but, in time, the small guy gets left out in the cold.

    One upon a time, in order to obtain a patent, the person applying for a patent had to produce a working model for the patent.

    If these two items were reinstated, the patent trolls would dissapear overnight as they would not have the funds to produce real working systems from their vague patents.  Their lawsuits would also have to be reviewed by feds before it went to a trial.

    We do not need a new patent system, just the original one that worked.

  8. _hm
    January 7, 2013

    I believe patents and its protection in current form is essential part of economy. It should not be disturbed at all.

  9. therealGman
    January 8, 2013

    Is that becaause you believe that the current system can't be improved upon?  Or is it possibly because your are in a position to profit from the insanity it has become?  Just askin….

  10. _hm
    January 9, 2013

    @therealGMan: Because it is the most proven system over time. It should not be disturbed with whims. It is akin to part of constitution.

  11. Cryptoman
    January 10, 2013

    Protective aspect of a patent is ovious. However, there are companies who are in the business of patenting technology without any intention of doing anything useful with it and who simply sit and watch closely to make money off people who truly wish to make something useful with the same technology. This is a big problem from an innovation perspective as it discourages people from even trying and thinking. The trouble is most innovators start small with very limited cash by building a prototype. Such innovators don't have the big bucks to pay anything to the patent owners. İs it fair to discourage these valuable brains before they even start doing something useful? The patenting system should push the owners to actually use the patents they own within a certain time frame before such patents are opened to those who are able to prove they have the potential to put the protected concepts to practical use. That way a fair balanca may be reached.

  12. Anand
    January 14, 2013

    The latest figures on lawsuits filed by patent assertion entities (PAEs) reveal a frightening trend that suggests this activity will remain a threat to American high-tech innovation and competition in 2013.

    @Nicole, thanks for the post. I totally agree with your opinion. I think there should be some balance between pretecting the IP and encouraging innovation. PAE's  not only stops innovation but also reduces compeititon.

  13. The Source
    January 15, 2013

    anandvy

    As a free market economy the US is dependent on innovation to keep the wheels of the free enterprise system turning.  PAEs really do hurt innovation and don't contribute anything to the marketplace. I'm hoping that this year we will see legislators implement more aggressive policies to tackle this problem.

    Thanks for your comment.

    Nicole

  14. Anand
    January 15, 2013

    I'm hoping that this year we will see legislators implement more aggressive policies to tackle this problem.

    @Nicole, this is great news. I really hope these agressive policies will reduce the role of the PAE's so that we can see lot more innovation and compeition. This will eventually benefit the consumers.

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