Professor Risch Weighs in on Patent Trolls
As a leader in the patent industry, Professor Michael Risch was asked to speak at the 2011 Napa Valley Summit which was held this month. He was also recently interviewed on the Hearsay Culture radio show discussing his research on the topic of patent trolls.
We have asked Professor Risch to briefly weigh in on this topic.
Can you first describe what exactly is a “patent troll”?
There is some disagreement about the exact definition, but the basic definition is a party that seeks to assert patent rights, but that does not produce any products or services. The name is pejorative, comparing these patent plaintiffs to the troll that waits under the bridge and exacts a toll. The more general term is “Non-practicing entity” or NPE.
You were one of the first to do an empiric analysis of patent trolls. Why do you feel this topic was worthy of scholarly research?
Patent litigation imposes huge costs on society, and the conventional wisdom is that trolls impose an even greater cost because they are not exploiting the patents themselves, but seek to stop others. Testing whether this is true is worth study, especially given calls to treat trolls differently than others who seek to enforce patent rights.
What negative impact do you believe the patent trolls have on society?
To the extent that they are patent plaintiffs, they impose a cost similar to other patent holders. A recent study confirms this. It shows that stock prices drop in similar proportions the day after a patent suit is filed against a company.
Why do you feel it is important for patents to be commercialized?
I think it is important to have commercialization generally. Patents can aid in this process by providing incentives to develop new ideas and products. This is one of the concerns about patent trolls, that they, themselves, are not doing so. I think this concern is a bit overrated, because trolls are happy to (and indeed their whole business plan is to) license patented technology for others to use.
What were your conclusions and/or suggestions to improve or change the role of patent trolls in society?
My general conclusion is that our view of trolls should reflect our view of the patent system generally. If one thinks the patent system overrewards inventors, then it overrewards trolls. If one thinks a reform is appropriate, the reform should apply to all.
How did you initially get involved in this topic?
I represented some patent plaintiffs that one might call trolls when I was in practice, and I found that most of the patents being enforced were coming from productive companies that either failed or from individuals that did not have the resources to sue on their own behalf. Later, while discussing the issue with another patent professor who was skeptical, I decided that the best way to find the answer was to do the research.
Do you cover this topic in your classes here at Villanova?
Very briefly. There is so much to cover in the intellectual property survey and patent law courses that there is little time to look at litigant behavior and policy in detail. I suspect they spend more time on these issues in the patent litigation class and advanced patent law classes. Villanova has a tremendous selection of patent law classes – six in total deal with patent law in some way, in addition to international intellectual property, which will be taught in our Rome program this summer.
What must every patent lawyer know?
This is a difficult question, because patent lawyers can do so many things. I suppose the most important thing for all patent lawyers to know right now is how the America Invents Act (patent reform) changes the rules for both patentees and the defendants they sue.
Do you have any advice to your students that want to practice intellectual property?
Unless one has a technical degree, it can be difficult to find a job in today’s IP economy. My suggestion is that students take whatever IP classes they can, and also follow what is happening in the IP world on one of the many blogs that do so. That way, the student can find a job in general litigation, and then show an interest and aptitude for IP that allows for a transition into IP.
How do you see patent law changing in the future?
The recent patent reform law made several changes that could change how patents are granted and litigated. The law is too new to make strong predictions about change. With respect to patent trolls, one change – which requires patent plaintiffs to sue one defendant at a time – will likely reduce the amount of troll litigation somewhat because their past practice has been to sue many – as many as 50 or 100 – defendants in the same case.
To hear Professor Risch’s interview for the Hearsay Culture show, click here http://cyberlaw.stanford.edu/node/6702. Professor Risch has also published an article entitled “Patent Troll Myths” which can be downloaded at http://papers.ssrn.com/abstract=1792442.
Professor Michael Risch joined the Villanova faculty as Associate Professor of Law from the West Virginia University College of Law, where he directed the Entrepreneurship, Innovation and Law Program. Prior to joining the West Virginia faculty, he served as an Olin Fellow in Law at Stanford Law School. Professor Risch’s teaching and scholarship focus on intellectual property and cyberspace law, with an emphasis on patents, trade secrets and information access. His articles have been published in the Stanford Law Review, the Indiana Law Journal, the Brigham Young Law Journal, the George Mason Law Review, the Tennessee Law Review, the Harvard Journal of Law and Technology, and the Yale Law Journal Online, among others. Professor Risch received his A.B. with honors and distinction in Public Policy and with distinction in Quantitative Economics from Stanford University, and his J.D. with high honors from the University of Chicago Law School. Prior to entering academia, he was a partner at intellectual property boutique Russo & Hale LLP in Palo Alto, California.
