TROL Act Not Strong Enough, Advocates Say

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By Casey C. Sullivan, Esq. on April 24, 2015 3:56 PM

Patent trolling, the process of threatening or engaging in abusive and often baseless patent litigation, has long been lamented in the legal and technology industries. You may have experienced it yourself, if your company has received demands for licensing payments for engaging in actions as common as sending emails or making photocopies. Reformers have increasingly called for limitations on these practices, finally leading to action from Congress.

However, that action doesn't go far enough, according to some advocates. As the Targeting Rogue and Opaque Letters Act (TROL Act) moves into markup before the House Committee on Energy and Commerce, two leading patent reform groups have said they cannot support the bill.

The State of Patent Trolling Today

Patent trolling, like pornography, can be hard to define in any absolute terms. Rather, it is often a "I know it when I see it" situation. Must ridiculous demands be in bad faith? If the actual inventor demands unwarranted licensing fees, is that trolling? Those questions underlie some of the more complicated nuances of patent trolling legislation.

But like porn, some trolling is obvious. Ars Technica provides a good recap of the worst offenders in patent trolling, which really began to take off over the past five years. Some demand fees of $1,000 an employee -- for sending email. One company sent out patent letters attempting to shake down businesses that use wi-fi. To an unsophisticated business operator, these demands can be highly intimidating. For in-house counsel, responding to such ridiculous demands can be anywhere from a massive drain on resources to a fun exercise in telling opponents to go jump off a cliff.

Where the TROL Act Falls Short

Anti-patent abuse advocates the Electronic Frontier Foundation and United for Patent Reform have come out against shortcomings they see in the TROL Act. UFPR, a coalition of businesses, criticizes the act for requiring a "pattern or practice" of sending demand letters, without clearly establishing what the threshold for such a pattern is. They also object to banning only letters sent in bad faith. The further take issue with allowing an honest mistake defense, which they say ignores the devastating impact deceptive demand letters can have on businesses.

However, some proponents of the bill have said their complaints go too far. Rep. Michael Burgess claimed that limits on demand letters could end up violating free speech rights.

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