On Friday, October 24, leading intellectual property scholar Mark Lemley of Stanford Law School discussed patent trolling at a breakfast with students. Lemley is one of the most frequently cited law scholars in America as well as a founding partner of Durie Tangri, a premier IP litigation firm.
“I was really thrilled that we could make the breakfast an informal, student-focused event,” said Rantanen. About 20 students attended the event, which was in the faculty lounge. “A scholar like Mark, a setting like that, and a topic like patent trolling is a great way to start the day.”
“I had never even heard of patent trolling before learning about this event, so I was looking forward to learning about patent law from the perspective of one of the foremost experts in the area,” said Lindsey Danielson, a 1L. “It was interesting to learn about to learn about a completely new area of the law that I didn’t know existed.”
Responding to interview-style questions from Iowa College of Law Professor Jason Rantanen, Lemley touched on some of his recent research on patent trolling including his efforts to refine the conventional understanding of the concept. He explained that a patent troll is a patent owner whose primary business is collecting money from others that allegedly infringe its patents and who does not actually practice the patent itself. However, there are a variety of strategies used by these entities, strategies that vary widely in terms of social costs. This adds substantial complexity to attempts to understand the problems presented by patent trolls and poses challenges to legislative attempts to rein them in.
Lemley also identified features of patent law that make trolling an attractive moneymaking activity. He noted that patent litigation, even more so than many other types of litigation, is long and expensive, giving infringement suits unusually high nuisance value. For many alleged infringers, it is significantly easier and often cheaper to pay the troll a licensing fee or settle the infringement suit. Lemley suggested that changing patent law to permit alleged infringers to use the defense of independent invention (a defense that is available in copyright law) would likely curb trolling, but might also have significant ramifications for patent law generally.
--Jay Stirling | October 28, 2014