Fighting Back With Criminal Law Charges Against Patent Trolls

As this article at Forbes explains, the business model of patent trolls in the United States is threatening lawsuits and then settling them before they actually go to court.

That’s because under the failed model of American civil procedure laws, the company approached by such a patent troll faces the choice to either pay off the patent troll or pay (even more money) to their own lawyers to fight and win the case. Even if they win, they don’t get any advantage from that, and the patent troll doesn’t get sanctioned in any way. The rational choice is to pay off the troll even if there is actually no patent violation.

The simple way to change this dynamic would seem to counterattack under criminal law. This business model is extortion. Extortion should be illegal and a crime.

Under American law, one might want to look at 18 USC 1951 (Interference with commerce by threats or violence). I don’t know much about American criminal law, but at first sight this looks as if the business model of extortion is illegal, especially when directed against commercial activity. Here is the definition of “extortion”:

(2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.

“Under color of official right”, “wrongful use of fear” might both apply to the extortion business model of patent trolls.

The interesting part is, once the victims of a patent troll attack routinely start counterattacking this way, the stakes change substantially. If the patent troll loses even one criminal case, he lands in prison, as well he should. That gives a strong disincentive to this kind of extortion business model, which is kind of the point of having a statute like 18 USC 1951 in the first place.

Published by kflenz

Professor at Aoyama Gakuin University, Tokyo. Author of Lenz Blog (since 2003, lenzblog.com).

One thought on “Fighting Back With Criminal Law Charges Against Patent Trolls

  1. This sounds good until a real claim is denied. How do you avoid punishing real owners
    of patents? Is Apple a patent troll?

    I would say “loser pays all court and litigation costs”. That puts
    both sides on equal footing, doesn’t it?

    Like

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