Patent News

May. 8, 2014

The Hill: Has the term “Patent Troll” jumped the shark?, by Steve Miller

This post originally appeared in The Hill on May 8, 2014.

Steve Miller is Vice President & General Counsel – Innovation & Brand Equity, The Procter & Gamble Company

In an April 18, 2014 op-ed, “Congress must rein in frivolous lawsuits”, the author inaccurately likens the legitimate enforcement of patent rights by companies like The Procter & Gamble Company (P&G) to the actions taken by so-called “patent trolls.” Her allegations that large companies prey on smaller competitors by using patent litigation to thwart competition expands the definition of “patent troll” well beyond the traditional definition of a “non-practicing entity”(NPE) that brings specious patent claims or defenses for the purpose of coercing settlements driven solely by the desire to avoid litigation costs.

Efforts such as these to re-define “patent trolling” are exactly the reason Congress must be extremely careful in crafting legislation aimed at curtailing the activities of “patent trolls.” Legislation targeting NPEs that engage in deceptive practices is welcome but restricting the ability of legitimate users of the patent system to defend or license their intellectual property would damage U.S. innovators and the significant number of U.S. jobs they create.

To label a patent holder as a “troll” simply because it legitimately enforces its patents against competitors, copyists, counterfeiters, and knock-offs who steal or copy the inventions of others, is to turn the definition of “troll” on its head.

P&G and other manufacturers who choose to protect their research and development investments by obtaining patents for their inventions are hardly patent trolls. We make significant investments and take substantial risks in our efforts to bring new innovations to consumers – something we cannot do if we cannot protect our inventions from copying by those who do not make similar investments and take similar risks. For example, Crest Whitestrips® are a revolutionary, “new to the world” product developed in the United States by P&G scientists at its labs in Mason, Ohio. The Whitestrips teeth whitening product relies on breakthrough film and whitening formulas. The U.S. Patent and Trademark Office (USPTO) granted several patents covering the Whitestrips product and manufacturing methods. P&G manufactures the Whitestrips products in the U.S. and Whitestrips have been a huge commercial success in the marketplace.

While going to court to enforce patents is not its preferred option, P&G occasionally has to resort to litigation to stop others from blatantly stealing its technology. P&G, like any innovative company, should not be put at a disadvantage in the market by others that do not innovate, but merely copy its technology. This is exactly why we have a patent system and how it is designed to work.

While the abuse of the system by patent trolls is a problem that needs to be addressed, it is critical that Congress not do so at the expense of the vast majority of innovation stakeholders for whom the patent system is working. Proposals that deprive patent owners of free access to the courts and delay or make less certain the availability of relief when patents are infringed will stifle U.S. innovation, prevent new inventions from reaching the market and improving the lives of U.S. consumers, and negatively impact the U.S. economy.