New USPTO Memo Makes Fighting Patent Trolls Even Harder

Defensive mechanisms and patent pools

• Some propose a “patent pool for non‑trolls” or defensive patent organizations; others note these already exist (e.g., Unified Patents, LOT Network, RPX).
• A key limitation: defensive portfolios don’t deter trolls because trolls don’t ship products and thus don’t infringe, so countersuits aren’t available.

LLMs as tools for prior art and obviousness

• One idea: timestamp and notarize LLM models, then later show that a pre‑patent LLM can independently generate the claimed invention → evidence of obviousness or hidden prior art.
• Former examiner perspective: attorneys routinely argue “hindsight bias”; any LLM test would need a careful, clean-room style protocol and statistical threshold to be credible.
• Skepticism: patents often don’t map clearly to real implementations, so it may be hard to tell whether an LLM “reproduced” what the patent actually claims.

IPR, USPTO policy, and who benefits

• One side: Inter Partes Review (IPR) weakens all patents and thus helps big infringers escape “rightful” patents; limiting IPR strengthens legitimate patentees as well as trolls.
• Another: IPRs are much better than jury trials for judging patentability; the new USPTO stance on limiting IPR is seen as a step backward that disproportionately aids trolls.
• Debate over beneficiaries: some argue big business is pushing rules that entrench their power; others note that large operating companies are frequent troll targets too, and industries differ in how much they rely on patents.

Patent trolls’ model and potential defenses

• Detailed anecdote: small LLC owning a single software/UI patent mass‑mails demand letters, threatening million‑dollar suits but offering quick ~$25k settlements; discovery revealed ~1,000 identical letters.
• Core asymmetry: defendants face huge, non‑recoverable legal costs; troll entities hold no assets beyond the patent, insulating them from fee awards.
• Explanations: troll firms are run by lawyers, so marginal cost is low; they drop expensive fights and profit from a spam‑like volume model.
• Suggested defenses:
  • Litigation insurance / IP insurance, though premiums and due‑diligence issues for small firms are noted.
  • Complex corporate structuring to isolate assets, mirroring trolls’ use of thin LLCs.
  • “Name and shame” to damage lawyers’ reputations, though some doubt reputational pressure matters to pure trolls.

Power, inequality, and access to courts

• Broader lament: policy increasingly favors those already ahead; without active redistribution and checks on power, systems trend toward feudal-style concentration.
• Dispute over data on wealth mobility; some cite longitudinal studies showing non‑trivial movement between quintiles, others distrust the underlying data and call the area speculative.
• Discussion of legal access: proposals to require proof of funds before suing are rejected as effectively barring poor plaintiffs; yet commenters emphasize that in practice, litigation already heavily favors the wealthy and well‑resourced.
• Personal account of a strong negligence case that failed to find representation underscores that even egregious harms can be practically non‑actionable when cases are complex or unprofitable.

Non‑practicing entities vs. “trolls” and abolitionism

• One position: many reflexively label any non‑operating patent holder a “troll,” but there are also small inventors who historically needed patents to prevent big firms from simply copying their work. Data on how many NPE suits are abusive vs. legitimate is seen as lacking.
• Counter: the defining feature of a troll is not merely non‑practicing status, but using patents solely as an instrument of mass extortionary threats, often on low‑quality or irrelevant claims.
• Legal vs moral framing: legally, both a major manufacturer and a one‑patent LLC have the same right to enforce; normatively, many see a clear difference between enforcing patents integral to shipped products and running a shell entity whose only business is enforcement.
• A minority argues the patent system as a whole should be scrapped, describing it as monopoly‑granting, innovation‑slowing, and citing historical claims that key technologies (e.g., early auto engines) were delayed by patents.