Inside The Mind of A Patent Troll: If It's Legal, It Must Be OK

If you believe companies formed to litigate patent suits aren't worth a lick of spit, then meet the new Dr. Evil: CopyTele Inc. (CTI), which sued Microsoft on Wednesday over encryption technologies used in Skype.

But to Rob Berman, the company's chief executive officer, CTI is actually standing up for the little guy. "When small companies file [patent infringement] suits, they're called patent trolls," Berman said in an interview. "When big companies assert their technology, it's called good business."

What some call "non-practicing entities," others call "patent trolls." Either way, companies like CTI don't actually make anything; they merely buy up patent portfolios, go after companies they believe are infringing, convince others to license the patents and use the proceeds to fund more purchases and litigation. Their entire business is quite literally predicated on suing people, or at least threatening to. For them, patents are just another commodity to buy and sell. And it's big business: the patent industry racks up $1.33 million per average settlement, and about $1.75 million per defense, according to companies like Google.

That kind of strategy drives entrepreneurs and established companies up the wall - as they see it, instead of working to add value, patent trolls are often seen as parasites feeding off the efforts and innovation of others.

That's no doubt why U.S. Sen. Charles Schumer (D-NY) will introduce a legislative countermeasure next week to subject patent suits to U.S. Patent & Trademark Office (USPTO) oversight. The USPTO would be required to "vet" patent suits, apparently trying to determine the validity of affected patents before the suit got to court.

CopyTele's Checkered History

Is there more to the story? That depends on who's doing the telling. CTI, in particular, has a long and checkered history.

If you Google CopyTele, you'll receive the following summary: "Designs and develops telecommunications products incorporating ultra-high resolution charged particle flat panel displays." That's what CopyTele used to do. In September of 2012, Berman and two other veterans from the so-called "patent monetization" business were brought in to revitalize the company.

Turns out that CopyTele was sitting on 53 patents that the company didn't know what to do with. CopyTele's board decided to make a management change, kicking out the 85-year-old chief executive Denis Krusos in the process. But before you feel too sorry for the senior citizen, take a closer look at CopyTele's sordid past. According to a fascinating 1986 Fortune tale, Krusos claimed at least some of his business ideas were founded on "visions" he had while walking the Greek isles, and his' Steve Jobs'-style launches of revolutionary mobile displays were in fact non-working prototypes. Meanwhile, CopyTele's stock was pumped and dumped by outside investors, the magazine wrote.

Nevertheless, CopyTele still had the "patented electrophoretic display technologies" that it had designed. Those patents are at the center of suits the company has filed against display manufacturer AU Optronics (whose own executives have been found guilty of price fixing) and E Ink Holdings. But that was only the beginning. Since then, CopyTele has gone on to acquire windows patents (the kind you look through, not click) as well as five other patent collections. To date, CTI has litigated only its own display patents, as well as the encryption patents it bought that are at the heart of the Microsoft suit. The others will be enforced in the future, Berman said.

Berman’s Patent-Troll Credentials

Berman, meanwhile, has taken his own fascinating journey to this crossroads. He was an early employee of Acacia Technologies Group, which bought up the patent rights to the V-chip, the electronic nanny that was supposed to automatically weed out television programs that were inappropriate for children. Berman, who was at Acacia from 2000 to 2007, launched the company’s "patent assertion business," demanding that potential V-chip licensees pay up.

In 2002, Acacia took on the porn industry, even winning over Larry Flynt, who licensed Acacia's streaming media patents in 2003. "That was me," Berman recalled cheerfully, describing how he "went undercover," visiting adult-industry trade shows to "better understand the business… It was a rough job, but somebody had to do it."

Are Patents Just Another Form Of Currency?

As Berman sees it, there’s nothing wrong with maximizing the value of patents. Without those patent suits, Berman claimed, CopyTele would be in bankruptcy.

To him, patents are just another way of doing business. "We've gone from a product-based society to a service-based society to a knowledge-based economy," he said. "One of the most effective ways of protecting knowledge is patents… I don't think that there's any other time in history, except for maybe after the Revolutionary War, where patents have played as important a role as they do today."

Basically, Berman's position boils down to this: Companies like CopyTele and Acacia buy up patents from the little guys, giving small patent inventors the chance to make money that they'd otherwise never see.

He conveniently ignores how "patent trolls" effectively levy tariffs on other, legitimate products, adding costs that eventually get passed along to consumers - and not really contributing in any way to innovation or productivity or any other social good.

Legal, But That Don’t Make It Right

But Berman is correct in pointing out that that's the way the world currently works. While he may be exploiting legal loopholes, what patent trolls do is not illegal. Of course, that doesn’t necessarily make it right, either.

The conundrum seems to require more legislation – hence Schumer’s bill to vet patent suits before they proceed to court. But new laws can have their own pitfalls – for example, if some patents are intrinsically "bogus,” maybe the better approach would be to tighten restrictions on granting patents in the first place.

Maybe the answer isn’t to target the patent trolls, no matter how loathsome, who are only exploiting patent law as it stands. Maybe the real need is a clearer definition of what role patents should play? Or a re-evaluation of whether or not software patents should even be granted? Berman thinks that legislation should be enacted to allow companies to discuss patent settlements privately, without the need to first go to court.

In the end, it all comes down to how you see the world. Is a business’ obligation only to follow the letter of the law, or must it also behave morally as well as legally? As a company, Berman says, CTI has an obligation to maximize revenues for shareholders without breaking the law. In his eyes, at least, that’s all there is to it.

 

Troll image via Flickr.