Of course I mean ‘patent trolls’ and ‘trademark trolls’ – the term given to people who sit on a patent or trademark like a troll under a bridge; they sit for ages in their dark holes waiting for an unwary passer-by, sucking them dry of money when they do.

Every few years, a particularly egregious case comes to light. There was the infamous ‘690 patent case, where a troll claimed a patent on 3D graphics. Yes, not some clever technique, but the whole thing – or at least that seemed to be the impression they were giving.

In fact, if you read the original patent, it was for a technique for communication of 3D data from a ‘mainframe’ to a ‘workstation’, but the title of the patent sounded misleadingly broad.

Although initially the claimants wanted preposterous settlements, these were reduced dramatically, so many settled. It was particularly galling that these trolls still benefited from their actions.

ON THE EDGE
This year we have seen the high profile case with Tim Langdell and his Edge trademark. It is surprising to me how many people appear to have paid up, but I suppose he became expert at the process. I am delighted that EA stood their ground over Mirror’s Edge and have made a conspicuous example of him. Hopefully other trademark and patent trolls will now think twice.

The reason such trolls exist is the legal process to defend against them is very expensive, both in legal costs, but more importantly in time – if it stops sales of your game (or whatever), it can threaten your very livelihood, and so the damages claimed are often tuned to be a little less costly than fighting would be. When a large corporation like EA stands and fights it benefits us all, and we should applaud them for it.

I was an expert witness in the ‘690 patent case, though it never went as far as court, and this opened my eyes to just how many patents there are out there for really obvious things.

It looks like Elite could be claimed to have violated quite a few – including the ‘690 patent – even though it pre-dated them, and the source code to Elite was lodged with the Library of Congress. Unfortunately being first does not stop it being a violation, but it can be used as a defence, and to unravel the patent – an expensive process.

Frankly these patents should not have been granted in the first place. Similar issues exist with trademarks. The biggest beneficiaries are the lawyers.

INVENTING TRUTH
When patents are debated on TV or radio, usually some inventor, like Sir James Dyson, is wheeled out to defend them, painting the picture of a hard-working Fred-in-a-shed coming up with an amazing invention, and using the patent to protect him from ‘big business’ that might otherwise muscle in and take the fruits of his labours.

The truth is often very different. The troll looks at techniques, obvious to those already in the industry, and frequently already in use, and gets a patent on them, drawn as broadly as possible but keeps quiet until it is about to expire, drafting it in such a way that a search will not pick it up.

The irony is that patents were created to protect the individual inventor, but in practice you need to have deep pockets to be able to afford to fight them so, in our industry, it is that same indie that is most vulnerable.

In my opinion, as an industry we failed in the Langdell case. This seems to have bubbled along for a very long time before anyone stood up to him. Perhaps Langdell’s spiritual successor is at work already?

If so, let’s shine a spotlight on it, too, and state our positions publically. This way, the next prospective troll, with the next silly patent or overly broad claims for their trademark, might just think twice. We will all benefit in the long run.