Patent trolls are people or entities that do not create or produce anything, and own at least one patent, more typically a portfolio, which they leverage against others in an attempt to secure licensing fees. Often times these licensing fees are calculated based on the value to the accused of avoiding litigation, and without taking into account the value of the technology itself.
Patent trolls have many tools in their arsenal. Typically, they will identify a class of potential infringers and pressure the alleged infringers to license their technology by threatening litigation. Many companies cannot afford the expense, or tolerate the risk, of such litigation, which may cost millions of dollars, even if the alleged infringer mounts a successful defense. Trolls may also seek to ban the importation of allegedly infringing goods, through the International Trade Commission (ITC), or seek an injunction, preventing the alleged infringer from use or sale of the technology.
Patent trolls, although popularized in the last decade, are nothing new, as evidenced by the below quote from 1878:
"[A]mong a host of dormant patents, some will be found which contain some new principle... which the inventor, however, had failed to render of any use in his own invention. And some other inventor, ignorant that such a principle had been discovered... had the genius to render it of great practical value ... when, lo! the patent-sharks among the legal profession, always on the watch for such cases, go to the first patentee and, for a song, procure an assignment of his useless patent, and at once proceed to levy black-mail upon the inventor of the valuable patent."
- Senator Issac Christiancy, (R - Michigan) 1878.
Periods of patent abuse have historically followed periods of fast-moving, complex technical change. These periods create uncertainty as to the novelty and non-obviousness of claims to the average professional, or person having ordinary skill in the art, in USPTO parlance, and also tend to result in claims of highly variable breadth. In the late 19th century, technology in the railroad industry was progressing rapidly, and was the focus of much of the patent trolling of that day. This situation is very similar to today's patent climate with regard to software patents.
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Matthew J. Curran, Esq., Associate