Taming the patent troll: tactics for dealing with a growing epidemic.

• Author: Thayne, Matthew D.
• Position: Legal Brief

Dealing with patent trolls is an ever-increasing burden and business expense, particularly in technology-driven industries. Whether your business is a regular target for them, or has avoided a troll attack thus far, there are strategies that will give you a leg up in battling with trolls, and help you avoid dealing with them in the first place.

Trolling for Patents

In its broadest sense, a patent troll is an entity that generates revenue exclusively from enforcing patent rights. It's possible to operate under this model in an ethical and justifiable manner, and many entities do.

The ugliest of the trolls are those that not only fail to commercialize the technology (the reasons for which may be perfectly legitimate), but also attempt to enforce dubious to baseless infringement claims in the hopes of extracting (some might say extorting) a settlement.

So what can a company do to counter and prevent the assaults of these "true" patent trolls? Take hypothetical company Troll Target, for example, to illustrate some of the tactics a company can use to defend itself from the patent trolls.

Be Diligent and Proactive

Get Product Clearance: Before developing and commercializing a new product, or a new version of an existing product, Troll Target should conduct a patent clearance search and have a patent attorney review the results to ensure that there are no patents that could be legitimately asserted against it. Depending upon the results of the search, Troll Target should also consider obtaining opinions of non-infringement, invalidity and/or unenforceability to protect the company against charges of willful infringement. If it appears that a valid patent would likely be infringed by a new product, Troll Target should either design around the patent or move in another direction.

Be Aware of Known Trolls in Your Industry: In designing its products, Troll Target should also satisfy itself that all patents held by a known patent troll could not be asserted in good faith against its products.

Cooperate With Other Targets

Patent trolls often assert their patents systematically against every significant player in an industry. Consequently, by the time a troll has set its sights on Troll Target, the same troll may have already targeted other companies. Troll Target might be able to obtain information regarding the troll's behavior, goals, tendencies, weaknesses and characteristics by contacting a former target of the troll.

Fight Back

Since patent trolls...