Patent trolls were all the rage in PatCon 4, which was held at San Diego University earlier this month. This is not to say that they were in vogue, but rather that there was hardly a panel—at least of those that I attended—in which the topic of patent trolls did not come up in one-way or another. There was even a good old-fashioned debate dedicated exclusively to the topic of patent trolls.
The ongoing challenges involving patent trolls revolve mostly around two main issues. First, there is much disagreement about what patent trolls are. This is evident in the variety of names that people use to describe these entities, including, the colloquial "trolls," "non-practicing entities" (NPEs), "patent assertion entities" (PAEs) and more. Similarly, there is a heated debate going on regarding what should be done about patent trolls and how to minimize the negative toll that they exact on the innovation economy. As can be expected, the debate surrounding what to do about patent trolls is greatly influenced by the disagreement about the definition of patent trolls and vice versa.
In this op-ed piece, however, I would like to weigh in on neither of these issues, but rather make a general observation about patent trolls that could provide the debate with another perspective. That is that patent trolls are a lot like parasites. To clarify: I do not mean to use the term "parasite" derogatorily, but rather in the neutral way it has been used in the biological sciences to describe the relationship between two types of creatures where one is deriving benefits at the expense of the other, mostly without necessarily killing it.
When a biological species is successful enough to thrive—i.e. not merely survive—there is often a margin of resources available to members of that species that becomes a potential target for exploitation by free-riders. This is the "niche" to which parasites are able to insert themselves. In most cases parasites do not kill their host, leaving it alive so that future generations of parasites may continue to extract resources from it and its progeny. Hosts, however, are not, evolutionarily speaking, "indifferent" to their targeting by parasites and tend to develop—actually acquire, if we insist on scientific accuracy—mechanisms that fight parasites and make it difficult for parasites to extract resources from their hosts. One example of a highly elaborate mechanism like this that we are all familiar with is our immune system, the primary purpose of which is to rid our bodies of parasites. Parasites, of course, do not remain idle but develop their own mechanisms in response to address their hosts' countermeasures. So ensues an "arms race" between parasite and host, a struggle that has been a staple of the evolution of biological species.
Much like parasites, patent trolls emerged as a prevalent phenomenon when a sufficiently successful class of "corporate creatures" came to prominence: the high-tech company. Patent trolls exploit the various vulnerabilities of these companies as well as those of the "IP ecosystem"—the area in which these high-tech companies thrive—in order to extract resources from them. A single patent troll usually poses no existential danger to any given company—as trolls are typically only after settlement fees and not their host's entire cache of resources. Too many patent trolls, however, could eventually bring down even highly successful companies. Similarly, like most species of parasites, patent trolls tend to mount numerous attempts on their hosts with the expectation that only a few of these attempts will be successful, which still guarantees enough resources extracted from hosts to keep the trolls alive and, in many cases, thriving. Interestingly, the success of trolls starting the early 2000s has allowed them to expand and diversify their business models in such a way that it is now difficult to talk about patent trolls as a unitary phenomenon. Hence, like with biological parasites, it may be useful to consider patent trolls as a "genus" or even a "family" of entities that includes different "species," each with its own specialty and preferred class of hosts, which may exceed high tech companies and include their licensees and end-users. Recently, commentators have suggested that trolls might even expand beyond the "ecosystem" of high-tech into the biotech area, while others have reported the emergence of trolls who specialize in exploiting vulnerabilities of copyrights rather than patents.
There are a couple of other interesting aspects of parasitism that are worth considering in this context. First, it is very rare that parasitism is completely eradicated and, second, parasitism, as a biological phenomenon, is extremely prevalent. Indeed, even with tremendous strides made in antibiotics and vaccine science, parasites we once thought were gone continue to make a "comeback"—e.g., tuberculosis and polio—while others remain barely scathed by even the most advanced technological countermeasures—e.g., malaria. Yet, it is important to remember that these and many other parasites have lived along side us for as long as humans have been around. The same is true for virtually any other biological species, exclusive of viruses perhaps. Thus, despite its negative social connotations, from a purely biological standpoint, parasitism is seemingly as natural as life itself. Once a certain species becomes sufficiently successful, it will inevitably be targeted by parasites. As such, value judgments of parasitism as "good" or "bad" are both meaningless and unhelpful; the only thing that should concern us with regard to parasitism is how successful and prevalent the parasitic activity is.
The patent-trolls-as-parasites analogy thus has several implications. As with biological parasites, trolls are more a symptom of the success of the high-tech patent economy than a sign of its vulnerabilities. Hence, for as long as we have prosperous sectors relying on patents as a means of ensuring their success, there will be trolls exploiting such patents to exact a toll on this success. This reinforces a conclusion previously reached by others: there is likely no panacea for patent trolls. Just like attempts to eradicate any single parasite with one fell swoop are likely to fail, seeking to outlaw patent trolls as such is unlikely to succeed and—like taking too much antibiotics—might backfire.
At the same time, this does not mean that we should leave patent trolls unchecked to extract as much as they can from their hosts. Nor should we abandon hosts to develop mechanisms to fight patent trolls by way of natural selection, as this would be too wasteful. Where inoculation or antibiotics are useful in diminishing the prevalence of a parasite and the severity of its attacks, it is broadly accepted that we ought not to avoid using similar means just because parasites are "natural" and may play a role in natural selection. By the same token, just because patent trolls do something that is "natural" to the patent system does not mean that we should allow them to freely exact their toll on innovative companies, let alone consider parasitism as somehow beneficial to the innovation "ecosystem." Further, our inability to design perfect tools for fighting patent trolls should not deter us from taking action to thwart at least some of their harmful behavior and minimize its effects. Indeed, as the debate in the Senate's Judiciary Committee regarding legislative measures to curb patent trolls continues, it may be helpful to consider the fact that even the most benign drugs have side effects. We all—legislators, judges and attorneys in various settings—should strive to inhibit patent trolls in order to make sure that they are not successful enough to exact an unacceptable toll on our innovation economy or, worse yet, overwhelm their hosts.
Yaniv Heled is an Assistant Professor of Law at Georgia State University College of Law where he teaches patent law, law & emerging technologies and intellectual property survey. Professor Heled received his LL.M. (2004) and J.S.D. (2011) from Columbia University and his LL.B. and Diploma in Biology—graduating magna cum laude—from Tel Aviv University in 2000. His research interests focus on the intersection between law and biology, especially in the context of new and emerging technologies.
Suggested Citation: Yaniv Heled, Patent Trolls as Parasites, JURIST - Forum, Apr. 28, 2014, http://jurist.org/forum/2014/04/yaniv-heled-patent-parasite.php
This article was prepared for publication by Kenneth Hall, assistant editor for JURIST's Academic Commentary service. Please direct any questions or comments to him at firstname.lastname@example.org