A Patent Troll By Any Other Name Still Stinks

On the Internet, nobody really likes to be called a troll. Especially the people who absolutely know they are trolls. It is a derogatory term meant to denigrate somebody who is deliberately provocative to produce the maximum amount of disruption to other parties' goals. We think of trolls as people that flame message boards and comments sections on news articles. Throughout the technology industry, especially in mobile, there are also patent trolls, whose goals are much larger than just upsetting people in a message board.

Patent trolls are also deliberately provocative to produce the most amount of disruption possible. The end goal for patent trolls, however, is to line their wallets. They may think of themselves as purveyors of fine intellectual property, but they are not actually creating anything or delivering useful items to the innovation economy. Patent trolls, by definition, are Non-Practicing Entities (NPEs) – they do not practice what they preach (or litigate over). 

InterDigital: A Fine Line In The Sand

A very fine line has been drawn in the sand on what constitutes a patent troll and what does not. A company called InterDigital, an “innovator” of 3G/4G wireless solutions, straddles that line. On one hand, InterDigital has a large engineering team that works to create patentable material on wireless technology. On the other hand, InterDigital does not create anything with those patents. It doesn't build the networks, the hardware, the base stations, servers or processors. It takes its patents and attempts to license them to mobile manufacturers and when those manufacturers refuse, InterDigital sues them. 

Nokia, Samsung, RIM, ZTE and Huawei have all run afoul InterDigital in the last year. In particular, the Nokia vs. InterDigital battle has been going on for a long time and has grown contentious over the last months. Today, InterDigital brought new patent suits regarding wireless technology against Samsung, Huawei, ZTE and Nokia, alleging that products from the companies using 3G/4G technology violate InterDigital’s patents.

From the complaint:

"The wireless devices at issue operate as, for example, cellular mobile telephones (including “smart phones”), cellular PC cards, cellular USB dongles or sticks, personal computers such as laptops, notebooks, netbooks, tablets and other mobile internet devise with cellular capabilities, cellular access points or “hotspots”, and cellular modems."

Basically, this covers anything you could possibly think of that might connect to the Internet in any way using cellular connections. InterDigital proposes an import ban for the four companies for any products that allegedly violate its patents. 

This is where the line between a company looking to protect its own intellectual property and status in a marketplace and a patent troll exists. Though many patent lawsuits from the likes of Apple, Samsung, Nokia, RIM, Motorola or others in the mobile manufacturer ecosystem are looking to hurt their rivals by keeping smartphones and other devices off retail shelves, InterDigital has no such marketable product to protect. 

In other words, this looks like a shakedown. 

InterDigital threatens import bans from these manufacturers with the hopes that the companies will back down and eventually license the patents in question. RIM has already succumbed to InterDigital and extended an agreement it had with the company to cover 4G technology like LTE and LTE-Advanced. 

“[InterDigital] is a patent licensing organization, not a technology licensing operation,” said James Bessen, a lecturer at the Boston University School Of Law and an expert on NPEs. “I do know people that study trolls who do consider it a patent troll … [InterDigital] is definitely considered a non-practicing entity.”

Lawyers like Bessen are not technically supposed to use the word “troll” when defining companies that act like patent trolls. The preferred technical term is “patent assertion entity.” A variety of companies fit into this category, notably the RockStar Consortium backed by the likes of Apple and Microsoft that deals with the leftover patents from the Nortel auction. InterDigital has the fifth largest holding of patents among companies considered to be NPEs in the United States with 3,138 patents, according to PatentFreedom. Intellectual Ventures is considered the biggest troll of them all, with 15,000 – 20,000 patents held. 

Manufacturers' Drag Fishing

InterDigital and its NPE cohorts are, of course, not the only companies that make news in patent litigation these days. The biggest tech story of 2012 was the patent fight between Samsung and Apple in which a jury awarded the Cupertino-based iPhone maker $1.05 billion in damages. Another top story of the year was the Google and Oracle smack down over the use of Java in Android. Apple and HTC got into a patent dispute and we learned that Apple and Microsoft have a patent settlement in place that required no litigation from either party. Ericsson has just filed a patent claim against Samsung in the U.S. with the International Trade Commission. Nokia and Research In Motion have had their patent battles. Such a complicated web patents weave.

Would you call Apple a patent troll? Google? Some people have and will continue to do so while the lawsuits continue to fly around courts. Technically, of course, they are not considered patent trolls under the definition of NPEs. These are definitely practicing entities, putting patented technology to work in products that people can actually buy. 

Yesterday, the U.S. Federal Trade Commission ruled on its 19-month investigation of Google’s antitrust case. While Google escaped mostly unscathed from the unfair search practices, the FTC did come down on Google-owned subsidiary Motorola for its patent-wielding practices. Motorola (even before the Google acquisition became final) had been suing rivals using patents that were considered SEP – Standard Essential Patents. SEPs are the type of patents commonly used by many companies because the ecosystem could not function without that particular technology. Think of Wi-Fi or cellular patents and you get the idea. 

SEP patents are supposed to be licensed on fair, reasonable and non-discriminatory terms (FRAND), meaning that companies like Motorola are not supposed to use these patents to sue other companies or seek injunctions and import bans. To a certain extent, that is what Motorola was doing and the FTC put a kibosh on the practice, hoping to create a template for future patent licensing between manufacturers. 

Where Does That Leave InterDigital?

InterDigital has seven specific patents pertaining to 3G/4G technology in its most recent suit against the four major manufacturers. InterDigital could be hurt by the FTC’s ruling on Motorola’s patent practices because of the SEP nature of InterDigital’s patents. In its complaint, InterDigital says that the FRAND defense would not apply to its patents. It also says that barring devices from the four listed manufacturers would not harm competition in the U.S. because InterDigital's other licensees (which now includes RIM), "would easily meet market demand with non-infringing devices." 

Seems like a convenient argument, no? InterDigital claims it is neither subject to FRAND nor would it provide a negative impact on competition. The latter might be true if Samsung was not listed in the complaint, but the Korean mobile manufacturer is largest smartphone supplier by volume in the U.S. 

In the end, InterDigital may find the Motorola ruling from the FTC will harm its ability to litigate going forward. We will also see in 2013 how courts end up treating other NPEs, like Intellectual Ventures. 

InterDigital is clever, though. It rides that fine line between patent troll and innovator with a large research and development department. But, as Bessen put it, InterDigital still looks like a troll by any other name. 

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