There is an old, dark joke that runs as follows: a doctor, an engineer, and a lawyer are debating whose profession is the oldest in history. “Well,” the doctor says, “back in the garden of Eden, God took a rib out of Adam’s side, and so he was a surgeon.” “Yeah,” says the engineer,” but before that, God created the world out of chaos, and so he was an engineer.” To which the lawyer laughs quietly and says, “Yeah, but who created the chaos?”
Aside from their amusing character, jokes like this are a firm reminder that generally speaking, Americans don’t like lawyers. This is about as obvious as the observation that journalists, Congress, and Typhoid Mary are held in low esteem. And rather like all of those three popularity sinkholes, lawyers often find new ways to deepen the low esteem in which they are held.
One of the most obnoxious ways they found to do this in recent years is the practice of so-called “patent trolling,” ie buying up patents with no intent to actually produce the inventions they protect, but rather simply to file lawsuits against anyone who does try to invent, with only the intention of settling quickly and extracting money. In other words, good old-fashioned vampiric rent-seeking of the kind that Americans have come to expect from trial lawyers, which is what made patent trolls such an effective legal bogeyman during the late Obama years and early Trump years. Fortunately, a string of humiliatingly unanimous Supreme Court decisions and policy moves by Congress took away a lot of the trolls’ gravy train.
But not all. Which is why, it would now appear, after years of being beaten down by the legal system and the policy world, patent trolls are getting their comeback. At least, such is the conclusion of Sarah Guske, partner at the law firm Baker Botts, in a wide-ranging interview with Law.com. Botts explains that, far from dying out, patent trolls have simply shifted ground. Where once the Eastern Texas District Court was the most infamous venue choice for trolls, the TC Heartland v Kraft decision at the Supreme Court has now forced them to spread their opportunities to the Western Texas District Court and the Central California District Court. And, the trolls have become more sophisticated, either going in early and extracting settlements as fast as possible, or actually hunkering down and investing money in fighting legal battles for as long as it takes to get their pound of flesh.
To be clear: not all assertions of patent rights are illegitimate. Some obviously are legitimate, and the infringers should be brought to justice. Moreover, the trolls did not get their groove back purely by accident. The legal environment today is unquestionably more hospitable to them, in no small part because US Patent and Trademark Office (USPTO) director Andrei Iancu is a demonstrated apologist for trolls, himself, and has run his office accordingly. The trolls are back because people in Washington want them back, and
This is a problem not only for the innocent victims of frivolous patent litigation. A pro-troll legal environment is one in which other bad actors with an interest in abusing the patent system for their own purposes can do vast amounts of damage to Americans. In fact, one could arguably lay the current scourge of high drug prices at the feet of the patent system. This is because pharmaceutical companies do everything in their power to extend the period of time in which they are given the monopoly power over pricing that patents confer on them. This process, called “evergreening,” takes the perfectly legitimate granting of patents to companies that research life-saving drugs, and twists it into an excuse for borderline absurd attempts to keep those patents alive long after the costs of research and development have been recouped, with ample profit to go with them. Unsurprisingly, it is yet another thing that Iancu’s office is in denial about.
Let’s be clear: patents are unquestionably good things. They provide the means by which inventions become profitable, and thus the incentive by which many inventions exist. Properly understood, they are the lifeblood of doctors and engineers the world over. But as with so much else, as the old joke implies, when lawyers get involved, we end up with chaos. Patent trolls and their peers in Big Pharma created that chaos. The question for policymakers going forward should be how to fix it.