Taking a Stand: How Companies and Government Are Pushing Back Against Patent Trolls

Taking a Stand: How Companies and Government Are Pushing Back Against Patent Trolls

 Thomas Edison was an astute businessman. He is repeatedly credited for things he did not actually invent, which by itself attests to his capacity for improving on the impractical or undeveloped ideas of others and reaping the benefits of patenting his innovations. He also purchased inventions solely to secure access to their patents, and he was not above licensing his own work rather than commercializing it directly. He was a resounding success as a result.

For all that, Edison has a surprisingly mixed legacy today. On the one hand, “the Wizard of Menlo Park” (named after his laboratory in New Jersey) is arguably the United States’ most famous inventor and a testimonial to American ingenuity—a giant who propelled the country and even the world into the 20th century and beyond.

But there is another, more complex side to his personality. Even in his day, Edison was sometimes involved in controversy over his inventions, due in no small measure to his patent interests. Moreover, with 1,093 patents in his name when he died in 1931, Edison was at times criticized for the sheer volume of his holdings, not all of which he exercised or promoted.

It’s a logical fallacy—an appeal to authority or a Texas sharpshooter argument—but such criticisms explain why Edison invariably gets dragged into the current debate about the state of the U.S. patent system.

Edison is invoked not to tarnish the great man’s image, but rather for the sake of borrowed legitimacy—an attempt to equate some of the inventor’s less significant practices or foibles with those of a small but worrying group of contemporary patent holders.

Cause for Concern

At issue is a growing unease over how some patent holders aggressively enforce their purported rights against alleged infringers, often with seemingly spurious claims and no apparent purpose other than monetary gain. Such entities are pejoratively referred to as “patent trolls,” a term that first gained traction with the 1994 release of a video that was sold to corporations, universities and government agencies to warn against the emerging practice.

To be fair, trolls—especially when they are referred to more politely as “patent assertion entities”—have their defenders, and there is criticism of how the term is sometimes applied (which is how Edison ends up embroiled in the controversy). Simply holding a large number of patents does not qualify, for example. In fact, companies frequently gather patents to fend off litigation from rivals—a kind of “mutual assured destruction” strategy based on perceived “patent parity”—and with no genuine intent to spur further innovation directly related to such holdings.

If it’s true that misunderstandings frequently result from poor definitions, it’s best to be clear: patent trolls are distinguishable by the boldness and ultimate aim of their tactics, which typically rely on the broad assertion of dubious rights against a large number of defendants and often with the hope of settling out of court. And just like their counterparts in ancient Norse mythology, they are scaring a whole lot of people.

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