Articles by Levick Experts

Patent trolls manufacture no products and have no customers. They acquire sizeable patent portfolios instead, which they use to file infringement claims against companies marketing real inventions. Trolls wield patent law like a cudgel and their targets either pay licensing fees or legal fees in protracted litigation. Most defendants settle to make the suits go away…until the next troll comes knocking.

The best-known example is NTP, the company that sued BlackBerry manufacturer Research in Motion (RIM). NTP does not make any mobile device hardware or software, but held patents it claimed were infringed by RIM, which settled for $612.5 million. NTP then sued Palm claiming seven patent infringements.

Not just deep pockets like RIM, but midsized companies, especially in the technology market, are often sitting ducks. Trolls count on the ignorance of targeted companies and, to generate sympathy for themselves, the credulity of the general public. The rise of the trolls is thus a PR and crisis management challenge as well as a legal problem.

Trolls enjoy a salient advantage that’s really all about size. They are smaller than the companies they sue, so they typically promulgate David-versus-Goliath scenarios, casting themselves as exploited victims of corporate rapacity. While that message usually resonates with the American media and the public, there are opposing messages that are just as resonant.

By identifying those messages, companies can speak just as directly to ingrained public values. For example:

• The company legitimately produces something; the troll brings nothing to the marketplace. Americans instinctively relate to the idea of productivity. That instinct should inform the company’s case in the court of public opinion at every stage.
• Debunk the underdog strategy. Explicitly say, “These litigants are not underdogs. They are pirates, and here’s how and why they’re litigating…” Americans object to having their sympathies exploited, especially by people who pretend to be something they’re not.
• Point out who’s better for the economy. By producing something, the company creates jobs and advances the economy. If the trolls win, innovation ceases.
• Trolls bank on legal technicalities to extort money. The public hates it when criminals walk on technicalities. So companies can draw a direct link between abuses of the system in criminal litigation and similar manipulation of the civil system.

Once the messages are refined, there are diverse effective ways to deliver them. In particular:

• Strike first. As soon as there’s an inkling that a troll is at the door, the campaign should commence online, in proactive calls to interested reporters, and in all appropriate industry forums. Whoever strikes first has a tremendous advantage in setting the theme and managing public perceptions.
• Dominate the Internet. The company’s blog and/or Web site should be better, more readable, and more interesting. With 85% of all journalists using the blogosphere when they cover litigation (especially technology-related litigation), it’s critical to dominate that discussion.
• Lobby the “high authority” blogs. Any case involving trolls and disputed technology will likely receive protracted and updated attention in the blogosphere. The support of the more credible bloggers can be the equivalent of favorable commentary in a major national newspaper.  
• Monitor all media activity by the troll. The company’s blog and/or Web site can then be used as a rapid-response mechanism to answer the adversary’s every public claim.
• Collaborate with trade associations. The trade association’s communications resources should underscore the defendant’s messages, both case-specific messages and the larger message of how trolls threaten legitimate social and economic interests.
• Create an online “troll advisory” forum. Recruit members from various industries. Publicize its existence. Make it a permanent resource for reporters and a help-desk for companies beset by this vulturine litigation.

Some trolls assume they have an insurmountable advantage every time they file a lawsuit. Don’t let them get away with it.