Peak ‘Troll’?

No doubt about it, making predictions is never easy, but it is especially hard to predict the future. The best predictions, by and large, are those that are premised upon a large sample of data that can be extrapolated to future events. Unfortunately, such large data samples are hard to come by in the patent world, and even when we have the dataextrapolation proves problematic, since the rules keep changing.

With all those caveats in place, in patent law the rules changes of recent years would seem to indicate that patent litigation, particularly the type of litigation derided as the work of “patent trolls,” should be decreasing now or in the very near future. Successfully asserting a patent of dubious quality has become harder, not to mention riskier, and getting potentially dubious patents in the first instance has similarly become more difficult. 

None of the above, however, drives me to speculate that the patent infringement suits motivating much of the patent reform movement are perhaps already past their peak. Instead, I base my speculation about the future of patent litigation upon a nice couple from a small town I met briefly this past summer. Both of the pair worked for a public school district. They have no lawyers in the family, no engineers, and no technology entrepreneurs, not even particularly technology oriented hobbies, to motivate an interest in the patent system. Nevertheless, they shared with me some ideas about how to stop those terrible patent trolls. Not terrible ideas, I should add, certainly nothing that could be dismissed as crankish. Even if their ideas might have needed a bit of tweaking in order to be implemented, they were well informed and well considered.

I don’t think that public school employees are the metaphorical equivalent to Joseph Kennedy’s shoe shiner, but I do suspect that when public consciousness of an aspect of the patent system has reached such a level that even quintessential middle Americans with no stake in the system have informed opinions about patent reform, fundamental change is afoot. We will have to wait and see what the numbers say.