Trolling the consumer

Amy discussed long tail patent trolling that target consumers. One such troll is Lodsys, which targeted iOS and Android app developers. Another troll (Project Paperless and its at least eight shell companies) targeted business offices with scanners on their network, claiming what appears to be patents on scanning paper documents and viewing images.

I agree with Amy that Lodsys and other hated patent trolls are a symptom of a problem in our patent system -- a problem that patent reform will hopefully solve. It will be an uphill battle, however.

In another blog post, I explained that our patent system has the difficulty of reconciling the interests of a pro-patent pharmaceutical industry with opposing or ambivalent views in the tech industry. And in the follow-up post, I quoted from testimony by Philip Johnson (who was nominated a few months later to direct the patent office) against the recent patent reform bill (a bill which was later killed):

...it is critical that Congress not [address troll abuse]...at the expense of the vast majority of innovation stakeholders for whom the patent system is working. Proposals that deprive patent owners of free access to the courts and/or delay or make less certain the availability of relief from the harms caused them by infringers should be avoided even, if necessary, at the expense of accepting less than a complete solution for troll abuse.

If patent owners are unwilling to make any compromises, it may be difficult to combat abusive trolls. Even though Apple attempted to intervene on behalf of its developers, the East Texas judge let Lodsys proceed and dismissed Apple's motion. And although many of these patents are of poor quality, as I mentioned when discussing studies on patent litigation, the majority of defendants are small businesses who would rather settle than risk bankruptcy.

In the case of Lodsys, the company was finally challenged after it targeted Kaspersky Lab. Eugene Kaspersky was happy to take revenge, even if it meant paying more to lawyers. As Americans in the 19th century vowed, "Millions for defense, but not one cent for tribute."

Joe Mullin of Ars Technica wrote:

In Kaspersky's view, patent trolls are no better than the extortionists who cropped up in Russia after the fall of the Soviet Union, when crime ran rampant. Kaspersky saw more and more people becoming victims of various extortion schemes. US patent trolls seemed very similar. "Kaspersky's view was that paying patent trolls was like paying a protection racket," said Kniser [Kaspersky's lead lawyer]. He wasn't going to do it.

Until strong patent reform is enacted, victims of trolls are best defended by organizing together to share legal costs and invalidate bogus patents. For example, against Lodsys, the Application Developers Alliance helped organize app developers.