It is always amusing to watch the intellectual gymnastics of clever people trying to defend the intellectually indefensible. Seventh Circuit Appellate Judge Richard Posner’r recent, article, “Patent Trolls Be Gone” (You talkin’ to me, Judge?) is entertaining in this regard, as we watch the good judge try to “clarify” the “problems with our patent system, which are profound,” before formulating, “feasible solutions.”
According to the judge, one of these profound problems is the problem of “patent trolls, as they are called” who “purchase large numbers of patents in the hope of using the threat of a patent-infringement suit to extort a patent-license fee from a company that makes a similar product.” (Emphasis mine.)
Extort? Since when is enforcing rights formally recognized by a Federal agency extortion? Strong words to be coming from a supposedly impartial judge.
As noted by the judge, “the alleged infringer may decide to pay the licensee fee, if it is not too large, to avoid the cost of litigation.” But this raises the question of why does it take $3 million or more in legal fees to dispose of a case that supposedly has no merit in the first place? Most jurisdictions today have specific local rules for patent cases that call on a patent owner state with specificity in the very early stages of litigation precisely what products are accused of infringement, what claims are alleged to be infringed, and precisely how those claims cover the accused products. In a truly baseless case, the weakness becomes apparent very early on. (And if the case is that weak, no reasonably ethical lawyer would file it in the first place.)
The comments in the linked article are entertaining and instructive as well.