RPX Corporation is a new start-up company that is attempting to pull together resources to acquire patents in an ill-defined attempt to thwart patent trolls.  It seems that RPX wants to build a defensive portfolio of patents, but this is not calculated to prevent patent trolls from doing anything that could potentially be useful.  If you take a look at the RPX website you will see that as of today they have over 150 patents and more than 60 applications in their defensive portfolio and they have spent $40 million.  That does not seem like a worthwhile investment, particularly when a defensive patent portfolio is not going to be doing anything to stop patent trolls.  A defensive patent portfolio is only useful when one is being sued by a firm that is doing something that could potentially be infringing upon patents held by the accused infringer.  The accused infringer sues the patent owner and says while I might be infringing you, you are infringing me.  The trouble with patent trolls is that they do not do anything other than acquire patents and enforce them.  They are not engaging in any particular activities that could ever be considered to be infringing, so what good is a defensive patent portfolio?  Exactly no good at all!

More and more schemes that will be completely unsuccessful at dealing with the perceived problem of patent trolls are being hatched. In an article titled Reexamination Would Stop Patent Trolls, which I wrote on IPWatchdog.com the other day, I criticized the just announced plan of Article One Partners, who will pay individuals for prior art they come up with if they believe the prior art could be used to invalid patent claims. The trouble with what Article One Partners wants to do is that it has been tried before and failed. Offering a bounty for invalidating prior art seems like a great idea but it has never turned into the accumulation of prior art references that would be truly useful. This is no doubt due to the subjective nature of the promise to pay a bounty. If Article One Partners forms an opinion that patents are invalid, those submitting the prior art can earn up to U.S. $50,000, with $1,000,000 available to Article One Partners to pay for prior art that is submitted. But who wants to spend the kind of time doing the research necessary with nothing other than a nebulous promise with subjective criteria? That is why in the article I concluded that reexaminations are the way to go if companies are really interested in stopping patent trolls.

According to USPTO statistics, 9.2% of requests for ex parte reexamination result in all claims being canceled and 59% of the time certificates issue with at least some claims being changed. Even more dramatic, 74% of requests for inter partes reexamination result in all claims being canceled and 14% of the time certificates issue with at least some claims being changed.  The answer to dealing with patent trolls is to go after them with reexaminations, not to try and build a useless defensive patent portfolio.  At least Article One Partners is trying to address the problem by giving incentive to individuals to find prior art and disclose the prior art.  I just don’t think the way they are going about it is going to work, but they are following the right path.  If Article One Partners really wants to succeed rather than waiting for people to give them prior art they would identify some bad patents, or bad patent owners, and go straight after those patents by funding the research necessary to uncover the prior art that would sink them.

My opinion is that these companies that complain about patent trolls don’t really want them to go away. Patent trolls are extremely valuable to these big tech companies because they are an identifiable and unsympathetic villain. They can be paraded about as evil and help these large tech companies pursue legislative reforms that would cripple other industries but which would eliminate the patent troll problem. Of course, the goal is not to eliminate the patent troll problem, it is to make the patent system weaker, have fewer patents granted that cover less ground and make it all much more expensive. You see, the goal is to make it difficult if not impossible for small companies and start-ups to obtain patents, thereby ensuring the market dominance of the mega-tech companies. Brilliant really, and if it didn’t mean that pharma companies and companies that actually build real products would be devastated mega-tech would have already achieved their agenda.