Patent trolls are some of the biggest drains on American business -- they tie up time, resources, and, according to a 2011 study by Boston University, cost American businesses $29 Billion in that year alone. By enforcing patents with absolutely no intention of ever manufacturing a product, patent trolls also effectively stifle otherwise great companies and ideas, simply to make money for their own gain.
Earlier this month the White House announced an initiative to combat patent trolls by reforming the patent process and reducing litigation costs.
In addition to this new initiative, Congress already has a few plans circulating around that they hope to implement.
But D.C. is notoriously slow moving, and in the meantime there are plenty of small businesses being threatened with frivolous infringement lawsuits. So exactly how can you avoid patent trolls and what can be done if one moves in to strike?
Create a digital shield
Firms that specialize in collecting on "infringed" patents don't just put up a list of companies and throw darts to see what businesses they are going to attack next. They comb the internet looking at websites and plans, picking out anything and everything that they can twist into patent infringement. Do not make it easy for them to do this -- you should be proud of your company and its achievements, but that pride should always be guarded with a hint of paranoia. If you are going to publish your white papers or go into the specifics of your business, make sure you are able to approve anyone and everyone that accesses this information. Your shield can be an online registration system for anyone interested in looking at your business's documents, or a system that forbids anyone outside of your office from accessing those documents. It may seem like you are hiding, but in the early stages of a business's development, the last thing it needs is some frivolous draining finances and resources. When you are a little more established, and have some extra cash on hand, you can advertise a little more heavily. But in the meantime, hunker down behind that shield and avoid being targeted.
If a patent troll slipped your defenses and picked up on some detail they feel they can potentially sue you over, you'll likely end up getting a letter informing you of the infringement, asking for a licensing fee, and threatening to take you to court if said fee isn't paid. The first step to avoiding that is to research everything you can -- find out who they are, whether or not they are actually a patent troll, and the specifics on how they are claiming you are infringing on their intellectual property. It is typically easier to fight the claims of infringement, rather than the patent holder's claim to the patent. This step will also help you figure out whether or not you actually are infringing on a patent, or if the whole thing is built on fairly shaky accusations. And, the more you uncover yourself, the less heavy lifting your lawyer will have to do. After you finish your research, and if it looks like you can defend your business fairly well, start looking for an attorney.
Find an experienced lawyer
Fighting a patent troll will not be easy, but luckily there are a lot of intellectual property lawyers with years and years of experience defending accused-infringers, and enforcing patent law. You will also want a lawyer that is willing to work with you and look over what you found -- lawsuits are extremely expensive, but as said above, costs can be cut if you, or someone within your company, has the experience and knowledge to do some research and defend any findings. You might even find other businesses being targeted for the same type of infringement, or by the same firm -- if that's the case, you could also consider joint representation. But even if you are alone, a good lawyer will be able to advise you on whether or not you have an adequate defense, or if you even should respond at all. Sometimes patent trolls just like to cast a wide net and see what they pull in, with no intention of actually pursuing anything in court. Either way, you should always contact an attorney and explore your options with them.
Hopefully in the coming months, we will see some of the initiatives the government has begun pursuing bear fruit. The ability for a patent holder to enforce their rights to their patent is something that should be protected, but at the same time that right to enforcement should not be so easily exploited. If you find yourself in a patent troll's crosshairs, remember that you are not the only one who has been targeted with bogus infringement claims. Stay calm, protect yourself, do your research, and if you need to, contact an attorney as soon as you can.