This blog recently reported on an East Texas jury awarding VirnetX over $600
million against Apple. In a recent
interesting article in Corporate Counsel by the Chairman and CEO of VirnetX
Kendall Larsen titled, “Are We Patent Trolls? Ask Jason Bourne,” Mr. Larsen complains about the popular press labeling
his company a “troll,” and explains why his company is not a “troll.” First, Mr. Larsen defines a troll as having
the following characteristics: “Their
patents cover no real invention, no true breakthrough in science or
technology[;] They are led by lawyers, not scientists, engineers or technology
business executives[;] They neither develop, make nor sell any real products or
licensable technology[; and] They assert weak patents — and usually seek
nuisance settlements.” First, Mr. Larsen
explains how the venture capital arm of the Central Intelligence Agency paid a
contractor to solve a problem covered by the invention—
“code named “Net Eraser,” came a simplified zero-click way to enable
secure encrypted communications.” Second,
Mr. Larsen explains that his company is not led by lawyers, but scientists,
engineers and technology business executives.
Third, Mr. Larsen explains how the “Gabriel Collaboration Suite, a set
of integrated applications that enable secure messaging, secure voice and video
calling, secure mail and secure encrypted file sharing with any other device,”
is used in Google’s Play Store, Apple Apps Store and in Apple’s iMessage. Notably, he states that, “Current licensees
include Microsoft, Aastra, Mitel, NEC, Siemens and Avaya.” Finally, he notes that his patents have been
held valid four times by courts.
Do you
agree with Mr. Larsen’s definition of a troll?
On the IPKat blog, I recently asked whether myth and metaphor are the
primary drivers of innovation in intellectual property law. Co-blogger Neil Wilkof subsequently asked the question
of what happened to patent trolls. Are
the trolls still around? Or, have they
been relabeled away? Does the popular media just
need to stop using the term? What do you
think?
1 comment:
I have always had a difficulty with the concept of patent trolls, or even NPEs, to deceptively define certain types of patent owners.
My reasons are essentially that:
- if certain (small) companies or even individual inventors have obtained a granted patent, it is more likely than not that it fulfills the patentability criteria, the more so in the US where skilled examiners spend a reasonable amount of time assessing those criteria for each application.
- Small companies or individual inventors, which are often the ones qualified as trolls, usually simply don't have the capacities to develop a technology into a commercial product, and therefore need larger partners having such capacities.
- it is the larger companies responsibility to make a meaningful FTO check before engaging resources into the development of a commercial product. Anyone, the more so the larger companies, can check if any granted patent covers its commercial products. There is little legal uncertainty about this.
So, unless I am mistaking on what is supposed to be named a patent troll (could be given the difficulties to define them, as shown with this post), I believe that this type of patent owners, and therefore this type of inventors, have a legitimate place. What they do is having great innovative ideas and protecting them by patents. What, seems to me, larger companies complaining about trolls want to achieve, is getting those innovations for free.
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