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Jewish World Review
March 20, 2006
/ 20 Adar, 5766
Trolls and ogres
Rabbi Dr. Asher Meir
Who is this patent protecting?
Q: My company is facing a patent infringement suit
from a company that doesn't even work in our industry. All they do is buy
patents and then sue alleged infringers. Is this fair?
A: The phenomenon you describe is becoming
increasingly common. Such
aggressive firms are sometimes known as "patent
trolls," because they can
suddenly pop up like ugly monsters up from the misty
swamps of technology
licensing and demand money. Another explanation is
that instead of taking
out a patent to use it in a particular application,
like an angler
positioning himself in a particular cove, they go out
into the open water
"trolling" for unwitting victims to fall into their
The question of trolls is particularly relevant from
the point of view of
Jewish ethics. Secular law views patents mainly as a
way of encouraging
innovation, or as the US Constitution puts is, "to
promote the progress of
science and useful arts". Innovation is encouraged
when an inventor can
get paid for his invention, whether this payment is
through profits from
marketing the invention itself or from licensing or
selling the patent. So
this approach is basically amenable to the inclusion
of patent holders
who do no business themselves.
In this approach, the problem with "trolls" is not
that they don't do
business themselves; it is that if the patent holder
is only trying to
capture unwitting infringers, he contributes nothing
to innovation. On the
contrary, his whole business plan assumes that going
independently make the same inventions, not knowing
that the "troll" was
But in Jewish law, similar protections generally fall
under the rubric of
unfair competition. The idea is that when a
businessperson invests effort
in making a particular endeavor profitable,
competitors shouldn't be able
to take a free ride on his investment. For example,
the Mishna talks about
someone who takes the trouble to climb an un-owned
olive tree and shake
out the ripe olives; it would be unfair for someone
else to come along
and just pick up the fruit. (1) A passage in the
interestingly enough, to a fisherman who goes to the
effort and expense
of attracting fish using bait; it would be unfair for
a competing angler
to choose that exact spot to cast his line. (2)
Based on this approach, many authorities conclude that
protection in Jewish law because if a person invests
resources in a new
product or process, he deserves protection from
competitors taking a free
ride on his efforts. But if the olive-beater or the
fisherman abandon the
area, it would seem fair for others to take advantage
of the windfall. By
the same token, if the inventor is not using his
invention, it seems fair
that others should be able to.
But in fact the distinction is not so stark. After
all, if the person who
invested effort is unable by himself to enjoy the
fruits of his effort, it
does seem fair that he should be able to demand
something from others who
can. And the protection against unfair competition is
itself meant to
encourage innovation. So again, the very fact that the
inventor isn't in
the production business is no reason that he shouldn't
be able to license
his patent; the question is if he takes out the patent
in good faith.
An inventor may take out a patent in order to market
the product himself
or license or sell it to someone else who will do so.
But if he wants to
keep his invention a secret in order to trap an
innovator, he is stifling innovation, not fostering
it. The parallel to
the Talmudic case would be someone who secretly baits
a fishing hole,
then waits until another fisherman happens along the
same place and adds
his own bait! Certainly the first, surreptitious
actor doesn't deserve
any meaningful piece of the latter's catch.
Before we conclude that firms need protection against
the patent troll, the annoying little
monster who holds the giant firm for ransom because of
neglected patent, let us remember that he has an
industry counterpart: the patent ogre. This is my term
for the giant firm
that runs roughshod over the rights of the small
inventors, relying on
its huge legal department to intimidate them from
seeking their due in
court. Very often the little guy who looks like a
troll is actually the
victim of an ogre — a large firm which knew of the
patent or easily could
have found it in a patent search, but is evading its
the inventor by calling him a troll.
From an ethical point of view, the criterion in both
cases is good faith.
If the inventor intends to foster, rather than stifle,
his right to benefit from his patent shouldn't depend
on whether he uses
his patent, licenses it, or sells it.
If the large
firm knows that an
infringement suit is frivolous, they have every right
to use all of their
legal resources to deter opportunistic litigants. But
each side needs to
be careful to use the legal system to defend his own
rights, and not as a
means to intimidate others.
SOURCES:: (1) Mishnah, Gittin 5:8 (2) Babylonian Talmud
Bava Basra 21b
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THE JEWISH ETHICIST, NOW IN BOOK FORM
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JWR contributor Rabbi Dr. Asher Meir, formerly of the Council of Economic Advisers in the Reagan
administration, is Research Director of the Business Ethics Center of Jerusalem, Jerusalem College of Technology.
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© 2005, The Jewish Ethicist is produced by the JCT Center for Business Ethics