Pirating Your Patents

››› Settle early. In most cases, if the parties in a patent dispute settle the case early in the proceedings, it will be for much less than if the case goes on to a decision or an appeal.

››› Make some phone calls. “When approached by a troll, or someone you think is one, call around” to businesses of like size that also may be using the patent in question, Singer says. “It’s very likely that others have received the same type of letter you received.”

Despite the value of these precautions, “there is no perfect protection plan,” Ubel warns.

Possible Fixes

As more companies begin to see patent trolling as a nuisance, they are wondering to what extent the problem is systemic, and how it can be fixed. Because patents are granted at the federal level, state and local government are powerless to step into the fray. Some are calling for higher standards, higher costs, and shorter life spans for patents. That would result in fewer—but higher quality—patents, but could also have the potential to strangle innovation by companies that lack deep pockets. Each patent application costs about $20,000 to prepare and up to $10,000 to take it from filing to issuance, a process that usually lasts three to four years.

“The patent system is generally self-policing,” Sorensen says. “The patent office has increased its quality control in an effort to reduce the number of invalid patents that could be used in these lawsuits. They’re aware of the issue. But so far they haven't had much of an impact.”

Conneely says that the Supreme Court is showing more interest in patent litigation. “For example, the court is reviewing the standard for deciding when a non-practicing patent holder is entitled to a permanent injunction,” he explains. “If the court rules that non-practicing patent holders cannot use the stick of a permanent injunction, the business risk to the target decreases, and the negotiations over a license to the patent change.”

But even if the government or the courts step in, some say patent trolling is a simple matter of working the system—a way of doing business that likely will never go away. “There will always be some clever people with clever lawyers who will figure out a way around any fixes,” Singer says.