Patent News

Oct. 23, 2015

The New York Times Opinion: The Patent Troll Smokescreen, by Joe Nocera

This post originally appeared in The New York Times on October 23, 2015.

Is the University of Wisconsin-Madison a patent troll?

The question is not as strange as it might seem. “Patent trolls” are entities that own patents that they use not to further innovation or manufacture a product but to conduct a kind of legal extortion racket. Holding patents that are sometimes absurdly vague, they send “demand letters” to the thousands of companies that use, for instance, bar scanners — to cite a legendary example — accusing them of patent infringement.

Many companies pay a fee to avoid litigation, but others decide to stand and fight. Sometimes they win; sometimes they lose. In either case, patent trolling is sand in the engine of commerce.

Now consider the University of Wisconsin-Madison, or more precisely, the Wisconsin Alumni Research Foundation (WARF), which owns the university’s patents. Whenever the university’s scientists come up with innovations — which they rarely intend to use to manufacture a product — WARF applies for a patent and then seeks to license it, just as trolls do.

In higher education circles, WARF is known as a fierce defender of its patent portfolio. Just like the trolls, it does not back away when it believes companies have infringed on its patents, and it will litigate those claims if need be.

But, of course, nobody thinks a university is a patent troll. Universities are supposed to come up with new ideas, not manufacture new products. That’s what companies do. If a university holds a scientist’s patent, the main way it gets the innovation into the hands of a company is through a licensing agreement. Robin Feldman, a University of California Hastings College of the Law professor known for her anti-troll views, notes that the law specifically gives universities the right to seek patents on federally funded research. Why? “To encourage the commercialization of new products.”