Patent Attorney and Founder
Most people who’ve looked into patenting their idea have heard horror stories about “patent trolls.” These mythical-sounding creatures are actually companies or people that misuse the patent system to stem competition or gain easy money through licenses and settlements. As for how to beat a patent troll? That all lies in your preparation.
Knowing what patent trolls are looking for and avoiding that behavior decreases your chances of being a victim. If the worst happens and you get targeted, you’ll be better prepared to fight it.
What is a “Patent Troll?”
It’s not entirely certain where the term “patent troll” came from. Some guesses have it originating in 1994, during a video created by patent attorney Paula Natasha Chavez. During a segment in the video, Chavez discusses the risks of “broad patents,” comparing them to bridges that trolls sit under and collect money. This metaphor is pretty on the mark. The patent troll is using someone else’s IP to earn money on a project they had no fundamental participation in.
There are a few different ways that patent trolls work. In a common scenario, a patent troll will seek out bankruptcy sales from firms holding patents and purchase them at rock bottom prices. Then, they find competitors to that business and file suit, claiming that they are infringing on their patent. The broader the patent they buy, the easier it is to do this.
Lodsys: A Patent Troll Story
While the “patent troll” title indicates a person, these are often actually companies. A good example comes from an accused patent troll called Lodsys. This company did not develop any technology in-house. Instead, they purchased four patents that broadly applied to various tech tools and started filing suit against all the developers using them, targeting companies from Canon to Martha Stewart. These suits were dropped in many cases where companies pushed litigation, though many smaller settlements were paid out and developers forced out of business.
There was no anticlimactic end for the company or punishment for patent trolling. It just allowed its domain to expire and stopped pursuing claims. That’s actually how many of these patent trolling cases end.
That’s because their claims rarely have genuine merit. It’s likely if the patent troll’s victim pursued it in court, they’d win. But going to court isn’t the goal of the patent troll. In some cases, what they want is a settlement. Many companies, especially ones with deep pockets, will choose to pay out nominal deals to resolve the case ahead of expensive, time-consuming litigation. Patent trolls may also be trying to stifle competition. A company may use patent infringement claims to force injunctions to prevent competitors from selling products.
While victims can claim patent misuse against such actors, these claims are difficult to prove and expensive. Because it can be so hard to beat a patent troll, it’s essential that patent owners be proactive.
How to Beat a Patent Troll
Due diligence is the key to ensuring that you can beat a patent troll early and avoid expensive infringement claims. If you’re targeted by a patent troll or are concerned that you may be, there are a few steps to take.
Patent searches
Forwarned is forearmed. You can’t defend against a patent that you don’t know about. A patent search will allow you to locate inventions similar to yours that may create a conflict.
Legal opinions
The search should come with a legal opinion from a qualified patent attorney. That patent attorney will tell you if your design is likely unique enough to escape potential conflicts or if you have to take further action.
License
If an existing patent could create a conflict, you can approach the current owner for a license. This will allow you to use the idea without infringement. In some cases, the patent troll will be the first to offer a licensing arrangement, though often the cost is significantly inflated.
Design around
Design around is an alternative to licensing the work of another. If a component of your invention infringes, you need to design around the patented material. This can also be a defense against patent troll claims. A court may limit the licensing fees to the maximum cost of the design around.
If you really want to know how to beat a patent troll, you need to talk to an attorney. Patent trolls are experts in navigating loopholes in the patent law system. You’re going to need an expert on your side to fight back.
The attorneys at Bold Patents know how to beat a patent troll and protect your IP. Visit our contact page or call 800-849-1913 for more details.