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You might be wondering “what on Earth is a patent troll?”, so I’ll tell you– “patent troll” is a label for any person/company/firm/etc. that makes a business of threatening to people for alleged patent infringement: almost homogeneously, these people buy patents from other companies/inventors with absolutely zero intention of using the patents for anything other than ammunition for litigation (not to be confused with the MPAA, the RIAA, or the copyright system in general). Rather than using patents in their intended manner– to ensure an inventor has time to complete his/her invention– the patent troll uses the temporary legal monopoly granted with a patent as a means to extort money from inventors who come up with new ideas/inventions or extensions on previous ideas/inventions that may at first glance seem similar to the patents which the patent trolls hold. It is estimated that any actual litigation that is brought by patent trolls and does not get settled before a court battle leads to the patent trolls losing over 75% of the time.
The patent trolls are not a new phenomenon, but they certainly have grown to prominence since the rise of big software. Software development is unique in that software’s “life” goes by considerably faster than most physical items and it is often the case that something becomes standardized in a fraction of the time of physical items. This creates the opportunity for mass patent trolling: if someone obtains a patent for a piece of software that has become a standard before the patent has expired, it is incredibly likely that someone somewhere has made an improvement on that standard, and since this improvement was not done by the patent holder, the patent troll has a prime opportunity to launch a legal missile. Another litigation-mongering opportunity occurs when a piece of closed-sourced software (not free for everyone to tinker with) resembling an open-sourced software (free for everyone to tinker with) that is not well known gets a patent, and since the open-sourced software wasn’t patented, the new patent owner can try to sue, even if the closed-source software was developed after the invention or even adoption as a standard.
These scenarios sound perfectly viable for patent trolls, but in reality, the “perfect patent troll situation” rarely occurs. Most often, the later example– of closed-source software patents being used to attack open-sourced software– is the case. Or not at all; sometimes the patent trolls simply choose someone who has just enough money to pay a settlement, but not enough to want to go to war with the patent trolls, which can get pretty costly, easily reaching the millions mark for a regular patent case. This is where the problem lies: the immoral patent trolls lose over 75% of the time, but simply by bringing a suit, they are almost guaranteed a settlement because the target often won’t be able to afford a lawsuit, even if they are innocent.
The solution? Make it so that it’s in the patent trolls best interest to be actually right about bringing a suit. Make it so that the plaintiff pays the fees if the case is found to be a pile of garbage. This would make it so that the average target of the patent trolls would be able to go to court and win ~75% of the time. This isn’t a fix in itself, but it’s a start. To be honest, I think the entire patent system is far outdated and needs to be updated from scratch to the modern world. Somewhere in that reform, I think the best way to stop wrong patent lawsuits is to place risk on the accuser as opposed to how it is now where the risk is all on the defendant. As a side note, it would be nice if there were no software patents, given the building-block nature of software itself, but I seriously doubt that a majority would go along with removing patents for software.