I gave a talk last week to a legal conference on two intellectual property issues that have a significant impact on IT: fair, reasonable and non-discriminatory rights of access to standards-essential patents, and patent trolls.
It provoked a spirited discussion at the end as to exactly what is a patent troll and I had to admit there is no hard and fast definition. However there are plenty of companies that, by general consensus, are patent trolls.
And when I searched on CSIRO and 'patent troll' I got over 700,000 hits. The top hit was from Australia's own Delimiter news web site: an article headed "Is the CSIRO a patent troll? US debate turns feral."
I won't go into it here, but it all centred on the CSIRO's successful prosecution in the US of claims over a key WiFi patent. You may remember that. As iTWire reported in 2009, the action generated some $200m for the CSIRO. The result was applauded in Australia, but not universally in the US.
The whole saga is set out in great detail in this blog on patentology.com. It comes down on the side of the CSIRO. "This really has been a David and Goliath(s) battle and – as in the original story, though perhaps less common in real life – David has emerged victorious." Commentators disagreed. And if you repeat my search, you'll find plenty of commentators that think the CSIRO was acting like a troll.
The iTWire article on the Vringo v ZTE case http://www.itwire.com/it-policy-news/regulation/60286 gave the Wikipedia definition of patent troll. "A person or company that enforces its patents against one or more alleged infringers in a manner considered unduly aggressive or opportunistic, often with no intention to manufacture or market the product."
I used this list in my talk.
- Purchases a patent, often from a bankrupt firm, and then sues another company by claiming that one of its products infringes on the purchased patent.
- Enforces patents against purported infringers without itself intending to manufacture the patented product or supply the patented service.
- Enforces patents but has no manufacturing or research base.
- Focuses its efforts solely on enforcing patent rights.
- Asserts patent infringement claims against non-copiers or against a large industry that is composed of non-copiers.
Both these definitions beg the question. What is wrong with seeking recompense for intellectual property even though you have no plans to manufacture, and what is wrong with investing in intellectual property (ie buying a patent) and seeking a return on the investment by enforcing it?