What the heck is a patent troll?
What is a patent troll?
Everyone in the patent community has a general idea of what makes a patent owner a troll, but I can't find a litmus test definition anywhere. If you've got one, please put it in the comments. I'm looking for a definition that allows me to decide if a particular patent owner is, or is not, a troll.
Based on several popular media accounts of NTP (of BlackBerry fame) and other famous trolls, I have the following questions relating to the term:
Must a patent owner eschew commercialization of the claimed invention to qualify as a troll?
Are you a troll before you sue someone who has commercialized the claimed invention? Or are you magically deemed a troll once you seek to enforce your patent? Are preliminary licensing negotiations enough to earn the moniker, or must you actually file suit?
Can you be a troll on the day a patent issues only later to earn the right to shed the term, perhaps when you start commercializing the invention?
Can an inventor be a troll? Or is there some sort of requirement that the patent owner acquired the patent from the inventor or some other previous owner?
Is it enough if that acquisition was part of an ordinary business transaction, or must it have been through some sort of "fire sale" or bankruptcy proceeding, as some have suggested?
There seems to be consensus on a threshold requirement that, to qualify as a troll, the patent owner must not have made use of the invention. But, even that is vague. In my mind at least, it raises more questions than answers. What the heck does "make use of the invention" mean? Must the invention have been commercialized? To what extent? Do initial commercialization activities qualify as 'commercialization', such as market testing, prototyping, and the like, or is actual shipment of product and/or provision of service required? Could a real troll duck the term if legally advantageous by doing some quick and dirty rapid prototyping? Market surveys?
Maybe the Supreme Court will fill the gap with its forthcoming decision in eBay v. MercExchange. A little dicta could go a long way on this issue. Let's just hope we don't see an "obscenity style" definition.