# Would a patent troll prejudice a court against it if it were honest? **URL:** \ **Category:** Factual Questions\ **Created:** [April 17, 2011, 4:38am UTC](https://boards.straightdope.com/t/would-a-patent-troll-prejudice-a-court-against-it-if-it-were-honest/578698 "2011-04-17T04:38:47Z")\ **Posts on this page:** 15\ **Page:** 1
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [April 17, 2011, 4:38am UTC](https://boards.straightdope.com/t/would-a-patent-troll-prejudice-a-court-against-it-if-it-were-honest/578698/1 "2011-04-17T04:38:47Z")
Let’s say a patent troll put up a website saying something along the lines of “We maximize value by engaging in lawsuits likely to result in substantial settlements as opposed to lengthy and expensive trials. We do this by investing in patents seeing common use in a given industry, often purchased at deep discounts from bankrupt concerns, and then protecting our assets via the legal system until the appropriate settlements are paid to ensure our continued profitability. We currently have a large war-chest of valuable patents and are looking for private investors.” Would something like that be detrimental to the troll’s case if it were found by the person or company they’re in the process of suing? ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [April 17, 2011, 1:14pm UTC](https://boards.straightdope.com/t/would-a-patent-troll-prejudice-a-court-against-it-if-it-were-honest/578698/2 "2011-04-17T13:14:11Z")
Interesting sidelight: [There’s at least one judge who doesn’t like _copyright_ trolls](http://paidcontent.org/article/419-righthavens-secret-contract-is-revealedwill-its-strategy-collapse/): > [@](#): > > Angered at Righthaven’s behavior, a Las Vegas federal judge unsealed the company’s heretofore confidential agreement with the _Las Vegas Review-Journal_ late on Friday. The contract reveals that the controversial copyright-enforcement company and _LV R-J_ parent company Stephens Media are splitting their net earnings from suing hundreds of bloggers on a 50-50 basis. It also shows that the _LV R-J_ is still largely in control of Righthaven’s litigation strategy—a fact that could end up being ruinous for Righthaven’s campaign of copyright lawsuits. > > [snip] > > **This agreement is under attack by defense lawyers—and if those attacks are successful, it will undermine Righthaven’s entire business.** Righthaven sued political blog Democratic Underground in August for printing an excerpt of an article from the _LV R-J_. DU hooked up with pro bono lawyers from the Electronic Frontier Foundation, who are now arguing that this agreement to move around copyrights and sue over them is invalid and a “sham.” The problem is that Stephens Media didn’t actually assign any of the rights related to copyright to Righthaven _except_ the right to sue—and that’s arguably illegal under case law. (Copyright geeks, see [Silvers v. Sony Entertainment](http://caselaw.findlaw.com/us-9th-circuit/1195551.html) for more detail.) In other words, none of the important things that come with a copyright—such as the right to make copies of a work, or distribute it, or make “derivative works”—were handed off to Righthaven. Only the right to sue was given, and that makes the copyright transfer bogus, argue DU lawyers. [Or maybe it’s just Righthaven](http://paidcontent.org/article/419-colorado-judge-is-seething-at-righthavenand-hes-handling-all-their-case/): > [@](#): > > Controversial copyright-enforcement company Righthaven was already catching a lot of flak for its lawsuit against Brian Hill. Denver alt-weekly _Westword_ was eagerly reporting that its biggest competitor, _The Denver Post_, was trying to make extra cash off its photos and articles—by working with Righthaven to [sue](http://blogs.westword.com/latestword/2011/02/brian_hill_sued_medianews_group_righthaven.php) a 20-year-old, chronically ill, mildly autistic hobby blogger. Now Righthaven has dropped that case. But the same Colorado judge who showed little patience for Righthaven’s tactics in the Hill case is overseeing dozens of other Righthaven cases. > > Court orders from today and Thursday make it clear that the judge overseeing the Hill case has great distaste for Righthaven’s sue-first-ask-questions-later business model. The problem for Righthaven is that the same judge—U.S. District Judge John Kane—is handling _all 58_ of the lawsuits the company has filed in Colorado. > > [snip] > > Weeks ago, Righthaven asked Kane for an extension of time to file its next motion in the Hill case. Such requests are common in civil litigation and rarely get denied. But on Thursday, Kane issued just such a denial, saying that Righthaven wasn’t going to get another minute to file its next motion litigating against Hill—Righthaven lawyers would have to work over the weekend and file by the deadline, which was today, April 11. > > And Kane didn’t just deny the motion—he slammed Righthaven’s business model, writing: “[W]hether or not this case settles is not my primary concern. Although Plaintiff’s business model relies in large part upon reaching settlement agreements with a minimal investment of time and effort, the purpose of the courts is to provide a forum for the orderly, just, and timely resolution of controversies and disputes. Plaintiff’s wishes to the contrary, the courts are not merely tools for encouraging and exacting settlements from Defendants cowed by the potential costs of litigation and liability.” I suppose if what the Honorable U.S. District Judge John Kane said in that last quote goes generally, I have an answer to my question and the patent troll would, indeed, be pretty well boned by a frank admission of its business model. (Yes, I’m aware that Righthaven is a copyright troll and copyrights are not patents. However, Judge Kane’s statement seems to apply just as well to any kind of troll of this general type, and it’s rather down on all of them.) ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 17, 2011, 2:13pm UTC](https://boards.straightdope.com/t/would-a-patent-troll-prejudice-a-court-against-it-if-it-were-honest/578698/3 "2011-04-17T14:13:56Z")
Righthaven is so far a novelty in the copyright area. If the copyright assignment issue doesn’t trip them up, they’ll undoubtedly find it unprofitable to fight a bunch of cases that the defendants have decided not to settle. Going back to patents, I’m not sure that the OP’s hypothetical will actually make a difference. Patents are intentionally assignable. The fact that an inventor can sell a patent and let someone else fight the legal battles is a feature of the system. The more money that a patent buyer can get for holding a patent, the more incentive an inventor has to invent and to pass along that patent to a buyer. Dean Kamen – inventor of a bunch of medical devices as well as the Segway – has on several occasions declared himself a patent troll. He uses the system exactly as it’s meant to be used. He gets cash for his inventions, which he then uses to put back into his research, and someone else does the manufacturing and the suing. So far, it has been difficult for the legal system to find a way to define a “bad” troll from a “good” troll like Kamen. People can’t even necessarily agree in specific cases. Look at the Blackberry situation. Research in Motion seemed to have a perfectly legitimate claim. But because the Blackberry device is so popular, the public went crazy, and people tried all kinds of things to give the advantage back to Blackberry. ---
**Author:** ![suranyi](https://avatars.discourse-cdn.com/v4/letter/s/e36b37/32.png) [@suranyi](https://boards.straightdope.com/u/suranyi)\ **Post date:** [April 17, 2011, 3:10pm UTC](https://boards.straightdope.com/t/would-a-patent-troll-prejudice-a-court-against-it-if-it-were-honest/578698/4 "2011-04-17T15:10:34Z")
> [@acsenray](#): > > People can’t even necessarily agree in specific cases. Look at the Blackberry situation. Research in Motion seemed to have a perfectly legitimate claim. But because the Blackberry device is so popular, the public went crazy, and people tried all kinds of things to give the advantage back to Blackberry. Could you please elaborate on this? It sounds from what you’ve written that RiM and Blackberry were on opposite sides in this case, but of course RiM is the creator of the Blackberry. It’s like saying Apple and iPod were having a fight. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 17, 2011, 5:17pm UTC](https://boards.straightdope.com/t/would-a-patent-troll-prejudice-a-court-against-it-if-it-were-honest/578698/5 "2011-04-17T17:17:59Z")
Sorry, I meant NTP, which asserted its patents against RIM. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [April 17, 2011, 6:16pm UTC](https://boards.straightdope.com/t/would-a-patent-troll-prejudice-a-court-against-it-if-it-were-honest/578698/6 "2011-04-17T18:16:37Z")
> [@acsenray](#): > > Sorry, I meant NTP, which asserted its patents against RIM. I think the big factor in the animus towards NTP and other similar patent trolls is their complete lack of effort in actually producing anything based on their patents. Kamen actually tries to turn his ideas into products, and so isn’t really a patent troll even if he’s called himself that. It’s simple, really. Work at producing something the public wants = popular. Get in the way of those who work at producing something the public wants, even with the soundest legal case in the world = unpopular. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 17, 2011, 7:03pm UTC](https://boards.straightdope.com/t/would-a-patent-troll-prejudice-a-court-against-it-if-it-were-honest/578698/7 "2011-04-17T19:03:39Z")
Popularity is not a sound basis for adjudicating rights. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [April 17, 2011, 7:22pm UTC](https://boards.straightdope.com/t/would-a-patent-troll-prejudice-a-court-against-it-if-it-were-honest/578698/8 "2011-04-17T19:22:30Z")
> [@acsenray](#): > > Popularity is not a sound basis for adjudicating rights. I didn’t say it was. You seemed to be expressing bewilderment at the response to NTP vs RIM, and I was addressing that. However, I would put it to you that patent trolls do nothing for and oft-times impede the bringing of innovations to the marketplace, whilst the patent system is purportedly in place for the express purpose of encouraging the bringing of innovations to the marketplace. That seems to me like a sound basis for a public policy debate on whether the patent system is fulfilling its purpose. Essentially I believe the OP is asking whether admitting that you have absolutely no interest in exercising your own patents would be a liability in successfully prosecuting your patents. I suspect not, and rightly so given the current legal structure of patents. But is it really so difficult to understand the sentiment of those who wish that it were? ---
**Author:** ![JWT\_Kottekoe](https://avatars.discourse-cdn.com/v4/letter/j/3ec8ea/32.png) [@JWT\_Kottekoe](https://boards.straightdope.com/u/JWT_Kottekoe)\ **Post date:** [April 17, 2011, 7:58pm UTC](https://boards.straightdope.com/t/would-a-patent-troll-prejudice-a-court-against-it-if-it-were-honest/578698/9 "2011-04-17T19:58:40Z")
I agree that the curent patent system often impedes innovation. In my opinion, it places too much emphasis on the inventive step and not enough on doing the hard work of turning an idea into a commercial success. Unfortunately, it is virtually impossible to change the system, as evidenced by the years of debate on the current round of proposed patent reform. Now that they have relabled it “The America Invents Act,” it will probably finally be passed. It has some good provisions, but will only make minor changes to the system. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 17, 2011, 8:18pm UTC](https://boards.straightdope.com/t/would-a-patent-troll-prejudice-a-court-against-it-if-it-were-honest/578698/10 "2011-04-17T20:18:22Z")
I wasn’t “bewildered” ny the Blackberry situation. I was using it to point out that it is often difficult to define the line between patent trolls and simple inventors, especially when public opinion is in play. And as to patent reform, it was never going to shift the emphasis from invention to manufacture. No one in the patent community would even be remotely inteestef in such a change and it would arguably require a constitutional amendment. In fact, independent inventors like Dean Kamenmrecoil in horror at any suggestion that exclusive rights should be awarded to manufacturers rather than inventors. For one thing, you would basically be dlhanding everything over to large corporate interests and individual inventors would be screwed. I do believe that there are valid arguments that certan types of products should not be eligible for patent protection. Software, is one of those. And perhaps the entire field of business methods – one-click ordering, tax advice, etc. But it still doesn’t really directly address the issue of trolls. When it comes down to it, the ability to sell rights to anyone, including a non-practicing entity is invaluable to the work of real inventors. Restricting that reduces the ability of inventors to make a living as inventors, which is clearly the intent of the Constitution. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 17, 2011, 8:38pm UTC](https://boards.straightdope.com/t/would-a-patent-troll-prejudice-a-court-against-it-if-it-were-honest/578698/11 "2011-04-17T20:38:15Z")
The more that I think about it, the more it makes sense to me to address the problems from the subject matter angle. I hope the Supreme Court gets to revisit the issue in Labcorp v. Metabolite, in which the patent was on a “method” of reading test results and giving a medical diagnosis. It’s a fact of nature combined with thinking. That shouldn’t be considered an invention. ---
**Author:** ![Gorsnak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/gorsnak/32/7587_2.png) [@Gorsnak](https://boards.straightdope.com/u/Gorsnak)\ **Post date:** [April 17, 2011, 8:40pm UTC](https://boards.straightdope.com/t/would-a-patent-troll-prejudice-a-court-against-it-if-it-were-honest/578698/12 "2011-04-17T20:40:26Z")
> [@acsenray](#): > > In fact, independent inventors like Dean Kamenmrecoil in horror at any suggestion that exclusive rights should be awarded to manufacturers rather than inventors. I don’t believe either I or **JWT Kottekoe** suggested that there should be a complete shift of rights from inventors to manufacturers - only that the current structure undervalues the development of ideas into real products relative to coming up with the ideas in the first place. Why do you keep bringing up Kamen? He’s practically the antithesis of a patent troll, self-appellations notwithstanding. ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 17, 2011, 9:14pm UTC](https://boards.straightdope.com/t/would-a-patent-troll-prejudice-a-court-against-it-if-it-were-honest/578698/13 "2011-04-17T21:14:10Z")
I don’t really think that a company with a successful product really needs any more incentive than the profits that having a successful product brings in. It’s really no different from sectors in which patents are implicated. And I menti ---
**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\ **Post date:** [April 17, 2011, 9:36pm UTC](https://boards.straightdope.com/t/would-a-patent-troll-prejudice-a-court-against-it-if-it-were-honest/578698/14 "2011-04-17T21:36:07Z")
I don’t really think that a company with a successful product really needs any more incentive than the profits that having a successful product brings in. It’s really no different from sectors in which patents are implicated. And I mentiOnes Dean Kamen, because he’s sufficiently well known and well respected to serve as a perfect example. You can’t really get around the problem by removing someone like Kamen on a sui generis or ad hoc basis. The fact is that independent inventors like him need and want to be able to sell their patent rights to whoever will give them the best price. Picking on non-practicing entities as a group ultimately benefit inventors, who are the ones who as supposed to be benefited. ---
**Author:** ![Derleth](https://avatars.discourse-cdn.com/v4/letter/d/b9e5f3/32.png) [@Derleth](https://boards.straightdope.com/u/Derleth)\ **Post date:** [April 18, 2011, 12:45am UTC](https://boards.straightdope.com/t/would-a-patent-troll-prejudice-a-court-against-it-if-it-were-honest/578698/15 "2011-04-18T00:45:17Z")
> [@acsenray](#): > > Righthaven is so far a novelty in the copyright area. If the copyright assignment issue doesn’t trip them up, they’ll undoubtedly find it unprofitable to fight a bunch of cases that the defendants have decided not to settle. Agreed. I was wondering, in part, how relevant that case would be to the patent arena, because this anti-copyright-troll sentiment isn’t limited to the two judges I quoted in that post. > [@](#): > > Going back to patents, I’m not sure that the OP’s hypothetical will actually make a difference. Patents are intentionally assignable. The fact that an inventor can sell a patent and let someone else fight the legal battles is a feature of the system. The more money that a patent buyer can get for holding a patent, the more incentive an inventor has to invent and to pass along that patent to a buyer. OK, so I guess that would mean there’s less of a stigma associated with being a patent troll in the eyes of judges. > [@](#): > > Dean Kamen – inventor of a bunch of medical devices as well as the Segway – has on several occasions declared himself a patent troll. He uses the system exactly as it’s meant to be used. He gets cash for his inventions, which he then uses to put back into his research, and someone else does the manufacturing and the suing. So far, it has been difficult for the legal system to find a way to define a “bad” troll from a “good” troll like Kamen. I deny that Kamen is a patent troll, regardless of what he calls himself. A patent troll is an entity that exists solely to sue people and corporations: They toil not, neither do they spin, and they don’t invent or practice the patents they own, either.