Finding the Trolls: My Mission to Understand Why We Need the PTAB

“When your entire life is taken away like mine was, you fight, you ask questions, and you insist on something fair.”

I was told that elected officials count on—in fact, they need—constituent input to be effective legislators. After my patents were unjustly cancelled at the Patent Trial and Appeal Board (PTAB), I started the journey to do this very thing.

Since January of 2022, I have visited Congress and the Senate two dozen times. I have visited over 200 offices telling my story and advocating for the “little” inventors, like me.

Throughout my journey, I have learned so much about how legislation works and how important it is to share my story through this process. I have also learned that both sides of the story need to be shared and heard as well. This is imperative to be effective in writing legislation. It is important that elected officials listen to and look at the big picture as they write the law.

Finding the Elusive Patent Trolls

I am sitting here in the early morning writing this article prior to my day starting here in DC. I have seven meetings today, before I depart back home for Colorado. There is new legislation in both the Senate and the House that was dropped two weeks ago. My objective was to come to DC to discuss this new legislation and how it affects small inventors like me. Whenever I am in DC, I also like to ask a lot of questions and expand my knowledge of patent law. This helps me understand why past laws were put in place, how we got to where we are today, and how I can productively be a part of the collective fix.

Concerning the PTAB, the administrative tribunal that cancelled my patents, I often focus most on this part of the system because it not only destroyed my business and my livelihood, but it continues to do so for thousands of other inventors.

In 2011, the PTAB was put in place as a faster, cheaper, alternative to district court. When you say that out loud it has a nice ring to it, doesn’t it? Well, it wasn’t nice. I didn’t have a choice about using this “alternative” court; it was my infringer who had the choice. This “alternative” cost me over $500,000 to defend the validity of my patents. Since 2011, this tribunal has found 84% of the strong, commercial successful patents it fully adjudicates “unpatentable”.

So, as I walk the halls and tell my story here in DC, I always ask the question, “why can’t we get rid of the PTAB?” One of the top three responses is “because the PTAB protects businesses from patent trolls.”

Will the Real Patent Trolls Please Stand Up?

The problem is, whether or not we really need the PTAB to protect businesses from patent trolls, the PTAB is also hurting inventors like me. The PTAB is like a big tornado that just sweeps us ALL in, and out comes 16% of us with a “ticket” to go back to district court. But wait—in some cases, even after a PTAB “win” we get another ticket back to the PTAB, and then another and another…

Yesterday it dawned on me—I thought, gosh, who are all these “trolls” out there? Where is the list of them, who are they, why are they doing this? They are the ones to blame for the PTAB being set up, right? Let’s get to the bottom of this and maybe we can weed out the “trolls” and find a creative solution to keep them at bay while getting inventors like me a fair process again.

Being the inquisitive person I am, I started my journey just yesterday of asking this question to our elected officials and their staff: “Can you please show me the data, the names of the ‘patent trolls’ that are abusing our system and hurting small businesses?” I figured everyone would have this information, right? It is what drastically changed our law.

As I embarked on my journey to ask this simple question, I have been answered with a lot of confusing faces and a standard response of, “I need to get back to you on this.”

Ironically, I was heading to a meeting in the Senate and ran into someone I know walking in the halls. I felt it necessary to ask my question to this person because, if anyone was going to have this information, it was going to be THIS person!

The response to my question was, “Hmm, you mean NPEs, right?”

I said “no, patent trolls. The ones who are hurting businesses and who provoked the PTAB to come into existence.”

The person corrected themselves and said, “I guess you’re right; I apologize an NPE isn’t always a troll”.

I said, “Yes, I know an NPE isn’t a troll, so how do YOU know when an NPE is a troll? I am looking for that particular list because this is why the PTAB is in place, right?”

The response was, “No one has ever asked for this information before; I am not sure if we have it. I will have to get back to you.”

Is Our Legislation Based on a Fictional Character?

I believe in life that everything happens for a reason. My exchange yesterday with this person was totally deflating, yet incredibly insightful. The America Invents Act (AIA) was created and passed on the idea that our patent system was being abused by “patent trolls”.

Did anyone in 2011 ask for the data, the list of trolls? This list should be somewhere, right? This list, these trolls, have drastically changed the course of patent law; they are the reason we are here today. Who are they?

Will the real patent troll please stand up?

When your entire life is taken away like mine was, you fight, you ask questions, and you insist on something fair.

While my “investigation” to find out who the trolls are has just begun, I am feeling really concerned by the initial responses I have received. What if our patent system was changed based solely on a fictional character?

Is all our law based on “characters” and “ideas”?

My hunt to find this list of trolls continues. If anyone has any information on the top 20 “trolls” in the patent world, I would love to know about them. In the meantime, I do know firsthand of the inventors—the real inventors—who are losing their patents, their businesses, employees and faith in our patent system. I hear their stories, I know their names, and my heart goes out to every single one of them, because I know how they feel.

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Author: yayayoyo

Molly Metz Molly Metz, a former five-time world jump rope champion, has been involved in the sport of jump rope for over 40 years. Her various offerings to the sport range from [...see more]

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com.

Join the Discussion

17 comments so far.

Mashered
July 23, 2023 04:02 pm
In the cases related to NLST, and their many patents, the patent trolls are Google, Samsung, micron, and other friends of theirs who IPR’d a seminal patent 9 times over 14 years. I dare say they IPR more than anyone else. Especially google and Samsung. They often help each other . Count up IPRs by google, Samsung,and Apple and the number will be larger than any other companies out there.
David Lewis
July 23, 2023 03:05 am
I am glad to see you speaking up on this issue and super glad that you have more of a voice than I do.

Unfortunately, it would seem that the ones that are being targeted as “trolls” are precisely small inventors, like yourself (or smaller) and other NPEs (although perhaps that is the real point of your article).

Large companies don’t like having to pay royalties to small inventors (it is likely just that simple).

For the most part, most people that use the term “troll” do in fact mean NPEs. People forget that small inventors that often do not have the money to market their products are in fact NPEs, by definition. People often demonize large corporate NPEs as trolls. However, If small inventors are lucky, perhaps a large corporate NPE buys their patent and that way, they at least make some money from their patent. Although, likely, there should be some sort of laws ensuring that the small inventors selling their patents are not taken advantage of unfairly, by the large corporate NPEs (or by other large entities), it is better than getting nothing for your patent (and so the large corporate NPEs are likely at least marginally helpful to small inventors). And, after buying the patent, (and hopefully after paying a fair price for the patent), what is the NPE supposed to do with the patent if not try to license it or enforce it? The only reason the word “troll” is used is because it just does not sound very good to say that you are sponsoring a bill that targets small inventors and NPEs. To cover things up or to ease their consciences, they throw the small inventors a few bones, such as discounted patent fees.

Although some of the above comments seem to blame Democrats for the patent law mess that we have, the AIA act (which established the PTAB) passed with 168 Republican votes and 136 Democratic votes (see https://clerk.house.gov/evs/2011/roll491.xml), and the Senate passed the AIA act with 95 votes for and 5 against. Alice was authored by Justice Thomas (and I think he is about as conservative as a judge can be). In general, both liberal and conservative justices have voted in favor of antipatent decisions. I think that is about as bipartisan as things can be in patent law.

Unfortunately, large companies (that do not want to pay royalties) are likely the same companies that are financing significant portions of the election campaigns of many, if not most, Congressmen on both sides of the aisle. That is likely how we have bipartisan support for anti-patent legislation and antipatent judiciary decisions with plenty of support from both conservative and liberal judges.

Perhaps, that is a little overly cynical. I would like to believe, that the sponsors of the AIA bill and the authors of the antipatent judicial decisions really believed or at least convinced themselves that they were doing what is best for the country and the patent system (even though they were likely misguided). However, I think it would be hard to refute where the financial support for all this comes from, and that large corporations don’t really like paying royalties to startups, NPEs, and small inventors for their inventions.
Anon
July 21, 2023 03:31 pm
Tony and Brother Anon – NPE’s are not per se Tr011s.

Perhaps you missed that point.

The intent of having an item of personal property BE fully alienable — AND the primary characteristic of that item of personal property being a negative right should inform your opinion on this matter.
Anon
July 21, 2023 02:44 pm
You didn’t look very hard. All 500+ cases filed by IP Edge last year. Anything brought by Bill Ramey. Rothschild, Dominion Harbor. It’s all out there
Tony
July 21, 2023 11:37 am
Um, it’s not hard to find a list of the top patent trolls. You can literally Google it. The reason we need the PTAB is because juries are full of idiots, who are completely unqualified to decide whether a patent is valid. And because it’s so easy to get a patent issued by the PTO that has no innovation if you amend a few times and pay for an RCE or two.
Jerome Feig
July 21, 2023 09:24 am
Molly & Anton, both have stated good truthful facts.

As an underfunded inventor, like many others, I fall under the umbrella of a being a troll/NPE.
There are, I would assume, literally thousands of us who have no intention of robbing from another company from our hard work of developing a patented idea. We are honest ethical business people.
Our intention is innovating with our creative juices, a lot of hard work, and sometimes a lot of money for development, that we can be the next great thing. The process in many times just the way we are or how we were brought up by our families and environment.
Just because we have not as yet found a way to financially bring whatever we patent to market; we are still active in our journey to the endzone of the free enterprise market system.
Anon
July 21, 2023 07:48 am
Jen Wallace,

I suggest that you continue your studies of the Founding Fathers and their intent on the creation of the US Patent System.

Here is a hint: they expressly created a negative-right system (be aware of and beware of the ‘must make’ bias), AND they imbued the personal property right of a granted patent — and this is critical to be a fully alienable property.

ANY attempt to constrain that property right to your version of ‘inventor’ (with the capital “I”) denigrates the full property aspect of the patent grant.

As I have explicated in the past, this denigration WILL even come back to bite those inventors that may decide to ‘make’ themselves.
mike
July 21, 2023 06:47 am
Yes, Rep. Lamar Smith used the pejorative “patent troll” repeatedly in the Congressional record, proclaiming that his legislation was geared to combat them. (As this article rightly questions “where are they”?) Former Director Iancu rightly called out this myth as a fairy tale when he was in office.

And what happened last month, June 2023? Rep. Smith officially recanted from his creation of the America Invents Act, admitting its unintended consequences.

Little did we know that our plan to stimulate job growth and innovation would be subject to abuse by giant tech companies. They have flocked to PTAB as a forum to overwhelm their smaller competitors through the sheer volume of resources they command. — Lamar Smith

Reference: Smith: Stop Big Tech’s patent abuse

Smith suggests codifying Fintiv. But what does he know? He’s not an inventor. Remember, no inventors were invited to discuss how it would affect them.

Why did Congress take away the 7th amendment right from inventors? The best proposal is to make the PTAB optional and only on consent of the parties. At least then the patent owner has the ability to waive their right to a trial by jury if they want to, rather than being forced.
Yul
July 21, 2023 06:02 am
Your noble intentions are great. As it is today, nobody can win against the system, spawned by the AIA… and Barack O. These patent trolls can be anybody, any entity that wishes to weaponize the AIA, by running circles on the USPTO and PTAB. The only way is to get big, really get big and then game the system too. This is the jungle… sharpen your knives coz there is no escape. Barack has left us a big mess!!
Jonathan
July 20, 2023 10:41 pm
This is an important point made by Molly as usual. She has become a great policy advocate. The whole concept is just a charade. It is repeated by non-innovative mega-cap distribution companies that want American tech open sourced in order to keep their aging product lines relevant. Ironically they all come crying to congress when state sponsored enterprises steal it again and outscale them.
B
July 20, 2023 10:33 pm
@ Molly Metz

I once threatened the PTAB with a suit in equity after they outright lied in a decision in a way that attacked my character. Specifically, they accused me of making misrepresentations (I did not) in a decision where the panel engaged in serial lying. The Virginia Bar had my back, and I made some unkind statments to the Chief APJ to force the issue. On Rehearing, I forced the sleazy APJs to retract their accusation – but unforunately their retraction was beyond idiotic.

Going forward to the CAFC, I came to the realization that most of the judges there lack an iota of common sense and decency and (I’m sure) never read some of the decisions they suppoedly wrote.

I totally feel for your situation, but the problem isn’t just the PTAB – it’s the dishonest CAFC, which acts as a rubber stamp for the PTAB.
Anon
July 20, 2023 04:59 pm
Miss Metz,

As you (correctly) surmised, there is NO such data (as it is merely the words of propaganda.

I cannot provide what does not exist.

This is NOT to say that the world exists without a few bad apples that may well have acted in the purported “Tr011” sense.

But even such a limited showing would not vouch for the “this MUST happen” zeal that patent protection has been attacked with by the Efficient Infringers.
Jen Wallace
July 20, 2023 04:01 pm
The AIA in practice actually empowered “Patent Trolls”.

Since the AIA, law firms that enforce patents have been telling individual inventors and small entity patent owners that, “due to the overwhelming uncertainties of the current legal landscape in the current U.S. patent system”, selling their patents to Patents to Trolls is the only practicable path to enforcing their patent rights or having any chance to monetize their granted patents.

To the extent that the Trolls have been caught and put out of business, the “Litigation Funding” industry has taken over that business space. Still, the overwhelming uncertainties (even for them) necessitate that these entities can only assert entire “bundles” of dozens or hundreds of patents to try and mitigate the (otherwise impracticable) risks that only 16% of the asserted patents might survive re-examination.

An inventor is not a troll. If you want a definition of “patent troll”, look no further than the words from the man himself — Lamar Smith — who’s name is on the 2011 AIA bill, the “Leahy-Smith America Invents Act”.

Smith defined “patent troll” when the bill was being debated in the floor of the House of Representatives. This is found in Congressional Record Vol. 157, No 91, available here:

https://www.congress.gov/112/crec/2011/06/23/CREC-2011-06-23-pt1-PgH4480.pdf

Look on Page H4485, column 3 at very bottom, continuing on Page H4486, column 1 at top. Smith says:

“I want to make it clear that my interpretation of this amendment and its intent is to highlight the problem posed by entities that pose as financial or technological businesses but whose sole purpose is not to create but to sue.

I am talking about patent trolls–those entities that vacuum up patents by the hundreds or thousands and whose only innovations occur in the courtroom.” — Lamar Smith (TX)

Tell me, do inventors ‘vacuum up patents by the hundreds or thousands and aggressively enforce those patents in court’?

Because that is what Lamar Smith said trolls do.

Read it for yourself.

Inventors are not trolls. Rather, Inventors (with a capital “i”) were called out by our founding fathers in Article I, Section 8, Clause 8 in the Constitution…

The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; — https://constitution.congress.gov/browse/article-1/section-8/clause-8/
CW5
July 20, 2023 03:39 pm
Molly –

I’m a patent trial lawyer in Texas with over 30 years of experience. I have represented patent owners and defendants in infringement litigation.

“Patent troll” is a pejorative term originated by big companies that would rather steal technology than pay for a license (or develop an alternative non-infringing technology). Those big infringers launched a multi-year, multi-million dollar lobbying campaign that focused on spreading fear of non-existent “patent trolls” who were somehow abusing the system. That campaign resulted in the AIA and, I believe, some very anti-patent decisions from the Supreme Court.

Today, essentially any individual or company that files a patent infringement suit is labeled as a “patent troll.”

The entire patent system has been hijacked by big company infringers. It no longer functions for the benefit of individuals and small to mid-sized companies.
molly metz
July 20, 2023 12:46 pm
**Anon, do you know where I can find this data?**

maybe the better question is:

Why aren’t they showing us the data?
molly metz
July 20, 2023 11:00 am
Hi Anon. Yes, you did tell me all of this.

However no one has showed me any data to support the trolls.

I have never seen a constructive list or graph that is showing the names and data of these businesses who have been “trolled”.

I assume the troll list exceeds AT LEAST 50%, harming to our US businesses.

I say this because the PTAB is in place to help/protect them, right?

When your representative says “we NEED the PTAB” to fight the trolls, our response is “this is a narrative”.

We can go blue in the face informing our legislative represenatives about the idea that this is “propoganda” but without data we are getting nowhere.

Anon, do you know where I can find this data?
Anon
July 20, 2023 09:32 am
Those of us could have (and have done so) told you of this long ago, Miss Metz.

“Patent Tr011” has long been an (extremely) over-inflated bit of propaganda created by (the term was actually created by) Efficient Infringers.

And yes (if the question is on your mind), I actively informed my legislative representative in both the House and the Senate my informed opinion on the matter during the AIA ‘evolution.’