While plenty of folks who dislike the patent system are fans of the term "patent trolls," I tend to avoid it unless it absolutely fits. Since, by it's very nature, it's derogatory, it tends to shut off conversation rather than encourage it. However, there's an interesting post over at Patently-O (which normally tends to be pretty pro-patent) from a law professor trying to define what are "troll patents"
(rather than patent trolls). He makes a pretty sensible argument: if you have a scenario in which the patent clearly contributes nothing to society, it should be considered a problem patent. That is, it's a scenario where the "invention" in question would have happened at the same pace even in the absence of the patent in question. Here are his conditions to make that determination:
- Is owned by someone that does not practice the invention.
- Is infringed by, and asserted against, non-copiers exclusively or almost exclusively. By copying I mean any kind of derivation, not just slavish replication.
- Has no licensees practicing the particular patented invention except for defendants in (2) who took licenses as settlement.
- Is asserted against a large industry that is, based on (2), composed of non-copiers.
If those four conditions are met, then it means that the product on the market would have occurred either way, and the only thing the patent serves to do is transfer money from the company making the product to whoever holds the patent. Considering the very purpose of the patent system is to "promote the progress," it's quite clear that the conditions above mean that no progress has been promoted -- and, in fact, the opposite has occurred.
Of course, if we actually had an independent invention
defense against patent infringement, this whole debate wouldn't matter nearly as much.