BE KIND TO THAT TROLL ...

Be kind to that patent troll, he might just be an inventor

The IPKat has just had a sudden thought, sparked off by reading Duncan Bucknell's piece on strategic responses to patent trolls. The sudden bolt of lightning is this: we've got a major problem of discrimination right now, caused by people being too 'trollist'.

Every entity that owns and licenses patents, without actually making anything, is capable of falling within the class of entities called "patent trolls". The concept is a brilliant one - we all know that trolls are evil creatures from Nordic folklore who control essential facilities and make demands of those who would use them. The word "troll" in English also resonates with "toll", a tax levied on an unwilling payee. What better way to stigmatise a person who charges rent for the use of a patent than to call him a patent troll?

The same phenomenon appears with the unpopular word "landlord", suggesting some powerful baron who will batter down doors and set dogs upon uncooperative tenants, exercising the jus primae noctis against their daughters (and sons, the Kat supposes, this being the 21st century). But the landlord (or landlady) is more likely to be an elderly pensioner, letting out a spare room for a bit of much-needed cash than a propertied demon/racketeer.

Left: some trolls can be quite cuddly - so let's not be trollist

What the IPKat is getting to is this: the commercial relationship of patent licensee to licensor should be both judged and regulated by clear and fair legal criteria rather than by name-calling and stigmatisation. The small-time inventor who creates and patents a small-time inventor but lacks the resources to make it, the university research team whose academic brilliance extends the boundaries of science but does not extend to the arts of manufacture and marketing, the pension fund that invests in intellectual property rather than land or share equities - are these all trolls?

What's more, if you're going to be a nasty, evil troll, it's silly using patents to hit other people over the head with. For one thing, their term is limited and highly vulnerable to challenge for invalidity; for another, they're expensive even for trolls to litigate. Also, abuses of monopoly power are subject to such devilish devices as compulsory licence applications and competition laws. Finally, people have been known to invent around inconvenient patents.

Merpel adds: it's strange, but a company that has US or European patents, but manufactures under them by outsourcing to a country where sweat-shop labour is dirt-cheap and legal regulation of labour and the environment is all but non-existent, seems to get far less criticism than a business that creates or buys patents - presumably from people who willingly sell them - and then charges for their use.

Right: never a great speller, Merpel struggles to grasp the difference between 'sweat shops' and 'sweet shops' ...

To conclude, no-one wants to see patents lying idle, or being used as tools of extortion - but let's retain a sense of proportion when debating the merits of patent ownership and exploitation and not let the use of emotive terms distract us from the real issues.