Protectionism Takes on a Dangerous New Legal Identity: A New Threat Posed by State Sponsored Patent Trolls

This think piece sees Adam Smith Institute Senior Fellow Keith Boyfield explore a worrying aspect of the alarming growth of patent assertion authorities – often referred to across the pond as patent trolls. He highlights a particular brand of patent 'trolling' sponsored by foreign governments, and contemplates its implications for world trade and competitive markets. Major corporations, some past their sell by date, have lost none of their appetite for continuing to launch unjustified demands for patent royalties through patent assertion entities (PAEs) or patent trolls as they are more familiarly termed across the Atlantic. PAEs hold patents with a view to extracting a substantial sum from companies utilising the patents. (see Privateers and the sinister plot posed by ‘patent trolls’). Typically, patent trolls have little in the way of assets and no manufacturing operation: they exist simply to ‘milk’ patents on behalf of a parent organisation. The patent itself is the primary asset and the only with any real revenue-earning potential. Tellingly, a PAE’s payroll is dominated by a platoon of lawyers.

Their efforts aimed at exploiting weaknesses in the patents system have proved so damaging to commerce that they have now provoked action by Congress. Indeed, US legislators have redoubled their concern as the threat of patent trolls sponsored by foreign governments, notably the Chinese, looms on the horizon. Even countries in Europe, most obviously France, have already taken worryingly protectionist steps in this area, with their own state-sponsored patent trolls.

Patent trolls are growing in popularity – and are, in many cases spreading their wings. Troll-like behaviour is being exhibited by others, too, such as the ‘patent privateers’, of which more later.

The aggressive bullying exhibited by trolls in pursuit of patent rights has led to product development being stifled and the shackling of competition in the marketplace, particularly as it relates to consumer products and telecommunications. To give one striking example, recent research by economists at the Massachusetts Institute of Technology (MIT) has shown that sales of imaging software has declined by one third relative to other medical imaging products due to the threat posed by patent litigation. The demand for such medical services is buoyant, yet patients suffer[i].

Nokia, which once bestrode the planet as the leading manufacturer of mobile phones, has now sold its handset manufacturing operation to Microsoft yet, significantly, it has retained the bulk of its patent portfolio. Whereas it no longer focuses on producing phones, Rajeev Suri, the CEO, has made only modest attempts to disguise the company’s strategy of asserting its patents through aggressive licensing demands pursued by privateer subsidiaries with no assets and no manufacturing capability[ii]. His colleague, Nokia’s chief intellectual property officer, Paul Melin, acknowledges ominously that, “Divestment of patents has become a very important channel for us to monetise and realise the value of our research and development[iii]”.

As pointed out in an earlier blog by the author on the dangers associated with this behaviour (Privateers and the sinister plot posed by ‘patent trolls’, August 29th 2014), the cost of litigation and the awards given by US courts, notably in West Texas, can be staggering. PriceWaterhouse Coopers (PWC) report that 6,500 patent suits were filed in the US in 2013 of which PAEs – patent trolls – accounted for two thirds of them. PWC note that the median damages awarded in 2013 was a lucrative $4.3 million. America’s accounting journal – the CPA Practice Advisor – reckons “frivolous patent litigation costs US businesses $29 million a year in direct costs and $80 million in indirect costs”.

Patent privateers take the patent troll model a step further. Privateers focus on what are termed ‘better’ patents, associated with leading parent companies as opposed to obscure, antiquated patents. In practice, privateers tend to restructure the originating company’s portfolio into a series of sub-portfolios, thereby increasing the potential to generate lucrative royalties. They also aggregate patents into those they are already asserting with a view to increasing their negotiating leverage. Privateers are used by some of the larger market players as a form of rent-seeking through the courts – to undermine or attack their competitors by launching time-consuming and expensive lawsuits or other aggressive actions against successful market players.

In the last month the US Congress has made fresh moves to combat this menace to competitive, free markets. In February, Bob Goodlatte, the chairman of the House Judiciary Committee, reintroduced an Innovation Bill with the signatures of no less than 18 Democratic and Republican legislators – and potentially the support of a majority of House members. The House passed an earlier version of the Bill in December but it did not win support in the Senate prior to the closing of the session. Crucially, this revised Bill aims to raise the pleading requirements of a patent owner intent on making an infringement claim. If passed this could help to curb the activities of PAEs, whether based in the US or established by foreign governments.

The threat to competitive markets, both in the US and here in Britain, has significantly increased with the establishment of government sponsored PAEs, a move which carves out a dangerous new form of protectionism. The People’s Republic of China, for instance, has pumped huge sums[iv] into China’s Ruichan IPR Funds in order to acquire a portfolio of patents which it can they use to extract substantial royalty sums from licensees across the globe. This alarming new trend is dubbed ‘patent stockpiling’. Japan, South Korea, Taiwan and even France are adopting a similar strategy by way of rent-seeking activity. In the case of Korea, the state owned PAE, the misnamed Intellectual Discovery, has bought more than 200 patents, including one for retinal eye scan technology, with a view to maximising royalty income through aggressive threats to litigation. France Brevets – the French Government’s patent pool – has been open about the litigious protectionism inherent in such a model.

Britain needs to be aware of these growing dangers to world trade and brief its representatives in the EU (which handles all trade negotiations on behalf of the UK and other member states) to support initiatives aimed at addressing the threats posed by patent trolls in World Trade Organisation (WTO) talks, along with the ongoing negotiations taking place under the auspices of the Transatlantic Trade and Investment Partnership (TTIP). Furthermore, our courts and legislators need to be wary of any rent-seeking in the form of frivolous patent suits aimed at extorting money from companies keen to innovate products and services.

If we do nothing about this menace we face a downturn in world trade, higher prices and a poorer deal for customers.

It’s time to act now.

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[i]                  See ‘Patent trolls: Congress gets down to business - A bipartisan consensus to address the issue is building in Washington’ by Steven Titch, Computerworld, 10 February 2015.

[ii]                ‘Why Patent Reforms Are Needed: Intellectual Property Abuses Threaten Innovation and Cost Consumers Billions’ by Steven Titch, Heartland Institute, Chicago, February 2015 Briefing Paper.

[iii]                 Op cit endnote (i).