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Admitted Patent Troll Finds The Phrase 'Shell Entity' Offensive

from the oh-really? dept

You may recall last year that we wrote about a patent lawsuit where the judge banned the use of the word "patent troll." That seemed reasonable enough, since it's clearly a negatively loaded phrase. However, it looks like some patent attorneys are trying to go even further with that concept. Ray Niro, in defending Scott Harris (who, you may recall, licensed his own patents to be used in lawsuits against his own firms' clients), is demanding that the phrase "shell entities" not be used either, claiming that they, too, are used negatively. That's because, like so many patent holders these days, Harris used shell companies to hold the patents and to sue companies. Of course, "shell entities" is a descriptive term, not one that is clearly designed as an insult like "patent troll."

Besides, this seems quite rich, coming in defense of Harris, who used to own the website ImAPatentTroll.com. And, indeed, the lawyers on the other side of the case wasted no time in pointing this out:
Additionally, the Motion to Strike asserts that the term 'shell entity' is synonymous, in this context, with the term "patent troll." Significantly, Mr. Harris, even while at Fish & Richardson, sponsored a website, imapatenttroll.com, in which he proudly and openly referred to himself as a "patent troll." Truth is an absolute defense.
Separately, it is also rather amusing to see patent system defenders get upset about the phrase "patent trolls" when they're so quick to refer to any sort of patent reform as "patent deform", companies in favor of patent reform "The Piracy Coalition," while, of course, insisting that any individual in favor of patent reform a "shill."
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Filed Under: lawsuits, offensive words, patent trolls, patents, ray niro, scott harris, shell entity

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  1. identicon
    MLS, 1 Aug 2008 @ 9:38am

    "Patent Troll"

    The terms is pejorative and overinclusive as it has been and is being used in a context that oftentimes embraces virtually every inventor(s) who is actively and diligently trying to move the "innovation process" (as you define the term) along to secure the services of others downstream to attempt productization of an invention and its introduction into the market. Such inventors have oftentimes also been referred to as "Non Practicing Entities" (NPEs).

    For example, it has been applied to universities engaged in tech transfer programs, medical professionals who have crafted new devices (such as, for example, stents) who seek out manufacturers for such devices, etc. These groups/indivisuals are most certainly not sitting on their thumbs waiting for businesses to beat a path to their door, nor are they laying in wait from some other group/party to introduce a new product so that they can sue them to the hilt for infringement in order to "extort" royalties.

    "Patent Deform"

    This is a term adopted by some attorneys and non-attorneys as a means of noting that there is little in the proposed Patent Reform Act of 2006 that in any meaningful manner addresses what many agree are problems with the current system. For example, one area that receives virtually no attention is the long recognized need for the USPTO to have readily at hand the resources needed and time allocated for patent examiners to properly perform their responsibilities. Rather than solving problems residing within the USPTO, the proposed legislation attempts to "load shed" USPTO responsibilites upon patent applicants themselves.

    Most practitioners well recognize the shortcomings of the present system, but strongly disagree that a solution lies wherein the USPTO is able to shift its statutory responsibilities to applicants.

    Other concerns, which I share, is that portions of the proposed legislation operate as cardinal shifts in the law in the name of "international harmonization", i.e., "they are all doing it so we must do the same." Perhaps some of these shifts are appropriate, but the dearth of any discussion within the Congress about pros and cons raises what I believe are justifiable concerns about unintended consequences.

    Rightly or wrongly, there is also suspicion that the drafters of the proposed legislation was apparently a cabal of corporate lawyers in the employ of many major corporations. This suspicion is no more and no less than the suspicion expressed on this site concerning recent legislative proposals prepared by the MPAA and the RIAA. Again, pro and con discussion of what this all means has been almost non-existent.

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