The whole question of patent trolling, and the concern over it, is an issue that has gnawed at me for some time, having defended small companies against patent infringement claims by competing manufacturers and having prosecuted licensing disputes on behalf of non-manufacturing, but inventive, patent holders. My latest bugaboo on this topic is the massive patent infringement lawsuit launched by patent holding entity Rockstar against Google, and the continuing effort by state Attorney Generals to crack down on entities deemed by those offices to be trolls. What bothers me, at the end of the day, is the promiscuous use of the term patent troll, and the underlying – and somewhat Orwellian – extent to which the term is clearly thrown into the lexicon to create a negative impression of non-manufacturing patent holders who seek to enforce their rights. Certainly, there are some patent holding entities, and their accompanying lawyers, who are basically in the business of simply suing on patents to collect licensing revenue or damages. This does not, however, mean that it is fair or appropriate to call all patent holders who do not manufacture or sell in the market trolls, or to treat all such entities as somehow entitled to less than the full protection of the patent laws. Many of us have experience with university patent holders, or have worked –as I have– with inventors whose very purpose is to invent and patent a product, to thereafter license it (hopefully); sometimes these types of patent holders are never able to find a market for their product, and thus their invention is never manufactured, but this should not deprive them later of their right to damages if, years down the road, a company sells a product that infringes on one of their patents.

The Rockstar lawsuit is another perfect example. I was not the first (I suspect) and will probably not be the last to refer to IP litigation between two competitors in the marketplace as the continuation of business by other means and, frankly, I am not sure there is anything wrong with that. The big players are big boys, and if they want to invest a fortune in legal fees to attack their marketplace rivals in that way, so be it. It doesn’t change the fact, though, that such a patent infringement dispute is only tangentially about invention, and much more about collecting damages or obtaining a competitive advantage in the marketplace.

So what do you do? Everyone who sues over a patent but doesn’t manufacture or sell a product can’t be – and clearly isn’t – a patent troll, nor deserves to be tarred with that smear, and yet we know that the sole value of some patents, and sole reason for the existence of some of their holders, is to sue those who do manufacture and sell (and who by doing so create a significant number of jobs, something not true of entities that exist solely to prosecute patent infringement claims).

To my mind, the answer is easy, and doesn’t even require any type of extensive change to the patent laws or the patent process. Instead, all that is necessary is to change the damages provisions of the patent laws: create some type of sliding scale of potential recovery that is inverse to the extent of manufacturing activity, selling activity, or effort to do so (even if unsuccessful) by the patent holder. It would be easy enough to create some sort of step in the litigation process – just as there is a Markman hearing, or preliminary injunction hearing, or a summary judgment proceeding – where the evidence on this could be submitted and a court could decide this issue and determine the extent of potential damages if and when the case were to go to trial. Alternatively, one could decide that, instead, this determination should be a jury question to be decided as part of the trial. Either way, though, you could seriously alter the incentives for trolling if you made the damages recoverable by patent holders dependent on the extent to which they themselves had tried to put the patented product or method into the marketplace.