56 percent of all patent lawsuits are made by patent trolls

Patent lawsuits are used as weapons in business wars between companies such as Oracle vs. Google and Apple vs. Samsung. Behind the intellectual property (IP) headlines, however, Lex Machina, a Silicon Valley startup, has found that patent troll lawsuits have increased from 24 percent of cases filed in 2007 to 56% in 2012.

According to the Electronic Frontier Foundation, a "patent troll uses patents as legal weapons, instead of actually creating any new products or coming up with new ideas." They collect their patents for pennies on the dollar from companies down on their luck. Since the Patent & Trademark Office (PTO) has a bad habit of issuing very broad patents for ideas that are neither new nor revolutionary, it's easy for a patent troll, which typically has no other business, to send out threatening letters to anyone who might conceivably infringe their patents.  These letters usually threaten a lawsuit unless the alleged infringer agrees to pay a licensing fee. These charges can range from tens of thousands to hundreds of thousands of dollars.

Patent trolling is a very successful business.

Lex Machina, which started as a Stanford University Law School and Computer Science department project, has found that:

"Cases filed by monetizers [i.e. trolls] rarely proceed to trial, usually settling early in the case. 75 percent of terminated cases filed by monetizers ended in a settlement, as did 72 percent of terminated cases filed by operating companies. Less than 1 percent of monetizer cases were decided at or after trial, and less than 2 percent of monetizer cases were decided on summary judgment. Of the summary judgment cases, the authors did not find a single decision in which the monetizer prevailed. Of the trial determinations, monetizers won half of the time, though this represented only 0.3 percent of all terminated monetizer cases."

That's actually worse than it sounds. You see, most patent troll shakedowns never get to trial. Lex Machina states, "Much monetization behavior, such as bargaining, posturing and payment, concludes without any party filing a lawsuit." As a result, the authors conclude that "increasing anecdotal evidence suggests that patent litigation represents only the tip of the iceberg, and that the vast majority of patent monetization activity never progresses to the point at which a patent infringement lawsuit is filed."

Eben Moglen, professor of law and legal history at Columbia University, and the chairman of Software Freedom Law Center, agreed with Lex Machina's conclusions. "I think they are consistent with the experience of those who work in the area," said Moglen, "They show why community defense [such as the Open Invention Network patent defense consortium] is so important, and why in the end it will be so effective at preventing rent-seeking behavior by these entities."

Why do businesses pay rather than fight? Because it's cheaper to pay up than fight. By 2008, the average patent judgment had risen to a mind-boggling $17.8-million. The cost of losing has only gone up since then. True, as Lex Machina has shown, the odds are vastly against you losing; but even if you win, it's costly to fight a patent troll.

The American Intellectual Property Law Association reported in 2011 that if you defend against a less than $1-million patent shakedown, your total legal bill will average $650,000. The costs, of course, only shoot upward as the amounts go upward. Matthew Bye, Google's senior competition counsel, wrote on April 5 that patent trolls cost the U.S. economy nearly $30 billion a year.

With numbers like that, is it any wonder that so many Android companies have settled with Microsoft rather than fighting their patent claims in court? Is it really so surprising that so few companies, such as RackSpace, are taking patent trolls head on?

The only real solution is a total reform of the utterly broken patent system in the US. Patents were meant to encourage innovation. Today, they only discourage it.

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