Google is reported this week to have filed a complaint with the European Commission for collusion by Nokia and Microsoft to use patent “trolls” to cause an increase in the cost of mobile phones by consumers. \u00a0See\u00a0http:\/\/online.wsj.com\/article\/SB10001424052702304821304577438740232322350.html?KEYWORDS=google+trolls<\/p>\n
I don’t like the word “trolls” when applied to IP. \u00a0My friend Peter Detkin, who if memory serves introduced the term in testimony before Congress some years ago, no doubt also somewhat rues his parentage of that pejorative label. \u00a0Peter went on to be one of the founders of Intellectual Ventures–a non-practicing \u00a0entity (“NPE”) that likely holds the largest portfolio of patents for licensing and invention purposes.<\/p>\n
The problem is, “trolls” means such different things to different people. \u00a0In its only fair usage, “trolls” should refer to NPEs that gather IP having dubious provenance or legitimacy, and then aggressively demand extortionate royalties under threat of litigation against firms \u00a0unable or unwilling to shoulder the burden of challenging the patents’ \u00a0validity. \u00a0So construed, the term ‘troll’ quite properly calls for holding one’s nose with an expression of disgust. \u00a0And, more importantly, for considering antitrust or other remedies to stop such abuse.<\/p>\n
Some, however, including Commissioners in our beloved Federal Trade Commission, have at times used the taint of “troll” to refer broadly to any NPE–an expansion of the term that smacks of a generalized distrust of IP. \u00a0After all, there are many other IP holders who have no intention or ability themselves to practice the invention: \u00a0universities, garage-shop inventors, and even Fortune 50 companies like IBM, whose changing business strategies or fortunes have passed by entire blocks of their IP. \u00a0 Consider, for example, recent IP asset sales by Lucent and Motorola Mobility. \u00a0Should we bar NPEs from buying those IP assets? \u00a0Should we require that Google commercialize them as a condition to approving their purchase?<\/p>\n
So headlines with the word “trolls” bother me; they play into a generalize distrust of IP with loose labeling. \u00a0They make no distinction between the proper commercial purchase and sale of IP–and its assertion like any other property right–and the use of ‘nuisance suits’ based on questionable IP to burden innovation and competitive vitality. \u00a0There should be no shame, and certainly no antitrust complaint, arising out of Nokia and Microsoft selling IP assets to an NPE. \u00a0Nor is there anything inherently anticompetitive in forming a joint venture to commercialize or license IP assets, or in cross licensing IP, which is typically pro-competitive. \u00a0The proper question is: \u00a0“Did competitors collude in their use of IP assets with the purpose and effect of harming competition?” \u00a0 The key words are “collusion” and “harm to competition,” not “troll.” \u00a0 I’m just saying. . . .<\/p>\n","protected":false},"excerpt":{"rendered":"
Google is reported this week to have filed a complaint with the European Commission for collusion by Nokia and Microsoft to use patent “trolls” to cause an increase in the cost of mobile phones by consumers. \u00a0See\u00a0http:\/\/online.wsj.com\/article\/SB10001424052702304821304577438740232322350.html?KEYWORDS=google+trolls I don’t like the word “trolls” when applied to IP. \u00a0My friend Peter Detkin, who if memory serves introduced the term in testimony…read more →<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[4],"tags":[],"_links":{"self":[{"href":"https:\/\/comptonantitrust.com\/index.php?rest_route=\/wp\/v2\/posts\/291"}],"collection":[{"href":"https:\/\/comptonantitrust.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/comptonantitrust.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/comptonantitrust.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/comptonantitrust.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=291"}],"version-history":[{"count":6,"href":"https:\/\/comptonantitrust.com\/index.php?rest_route=\/wp\/v2\/posts\/291\/revisions"}],"predecessor-version":[{"id":297,"href":"https:\/\/comptonantitrust.com\/index.php?rest_route=\/wp\/v2\/posts\/291\/revisions\/297"}],"wp:attachment":[{"href":"https:\/\/comptonantitrust.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=291"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/comptonantitrust.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=291"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/comptonantitrust.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=291"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}