Trolled!!!

Well picture this. You discover an idea. An idea that you know that it would change your life. An idea you know will make better of the world around you, or well, atleast your finances. Well, its good, not many people get stricken by great ideas, but still, there are just a few.

Let’s picture this idea as a sapling. You have just found a sapling for yourself.

Now here comes the best part. You are not satisfied with just getting an idea. You decide to implement this idea. You get this idea to work, to make you money, or whatever that is you are after. You invest time, money, your intelligence, intuition, and luck to get this idea into fruition. You want to start a company, the tree which your sapling becomes.

So, the sapling grows into a tree. A tree laden with fruits. Fruits that make you rich and famous, your life inspirational, and what you do valuable. So you are liking the scene. You got an idea, a dream, you nurtured it, protected it, the future generations would praise you for your entrepreuneural instincts, your intuition and perseverance. And then suddenly BAM! a hitherto unseen force start  clobbering your beloved tree. You try to find out who it is and see that it’s a giant green troll. The troll keeps on hitting on the tree trunk and to jerk fruits of your tree. Your young tree could not bear the brunt of its attack. All its fruits, leaves fall down, its trunk gets crushed, its totally done…..all your dreams, hardwork, everything. Poof. Into smoke.

Now let me tell you a thing or two about our troll friend. He’s cunning, smart, and lazy. He’s the one who has the necessary proofs to claim that the idea, or (sapling in this case) is his. He knew it all along. And he has been watching you nurture that sapling of yours, watching it grow, waiting to strike just at the right time, when he could gobble up as much amount of your investment and success as possible. Every story needs a villain. And this is as villainous, disgusting and cowardly a character could get in your story.

So back in the real world, where ideas aren’t saplings or startup companies aren’t trees, these trolls have a very special term: Non practicing entities (NPEs) or in the popular word, patent trolls. They have patents to prove their right to your idea. They could threaten you with lawsuits or make hefty settlements that could just rip your company to pieces.

Patent trolls really are a pain. They increase the amount of redtape one has to go through for being creative. They increase the transactional costs incurred while developing technology, they make a mockery of the patent law and judicial system of a country. When the patent law of a country becomes efficient, patent trolls thrive. So really, it’s the good things, policies meant to reward the innovators and inventors, that is backfiring here.

The menace of patent troll vary with jurisdictions. This is an article in the national law review that elaborates on the varying amounts of patent troll activity across the globe. According to the article, patent troll activity is quite limited in India. So if you are a startup in India, chances are that you won’t be sued by a patent troll.

This is because that Indian patent law has made it impossible for trolls to survive in the country. Thanks to amendments like patent amendment act 2005, the patent troll business model does not work in India.  First of all, acquiring patents would take time. That’s not just in India, anywhere, building a patent portfolio is not easy. It takes a lot of thought and knowledge.

Now coming to the second part. Patent system in India is completely transfixed on the idea that patented inventions must be used for the growth of industries in India, generate jobs, develop the economy. To ensure this, it has brought a few good measures too. I could name three, compulsory licenses, revocation due to non-working, and form 27.

If a person has a patent for an invention, and if the invention isn’t worked within 3 years of filing, any person can file for a compulsory license and snatch away the rights from the person to practise the invention more. Patent trolls need lots of time to work. Three years is too small a time for trolls to lay low waiting for a chance to strike some flourishing company. The presence  of such clever laws in India keep trolls from building huge patent portfolios solely for the purpose of suing and not implementing.

After 2 years, if the invention has not been put to work even after compulsory licenses, the patent is revoked for non-working.

In spite of all this, the inventors are encouraged to submit a statement of working (form 27) after every financial year.

The Indian courts aren’t ideal places for patent trolls to survive. So if you are a troll suing a company in an Indian court, chances are that you might find a great deal of bias against you. Indian courts do not grant injunctions easily. It is quite true that an interlocutory injunction against the product can be obtained soon if the patent infringement is found. But to actually gain money as damages, it takes a great deal of time. And it simply is not profitable for a patent troll to spend that amount of time for litigation.

 

Author, Leo Paul Johnson is a patent engineer at IP ASTRA
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Don’t get Rich, Famous, or Successful!

Yes, I know you’ve worked very hard for your company and made so many sacrifices. You and your team have worked days and nights together and made the impossible happen. You couldn’t have been prouder of the things you’ve accomplished as a team. You’ve gained loyal customers, your cash register is full, the demand for your awesome new product seems to grow, and you’re adding a lot more customers each month. You’re on the brink of going viral. Yes, you’ve achieved great things already and I’m sure you deserve to get rich, famous, and successful.

But here’s my advice – Don’t get Rich, Famous, or Successful!

You might lose it all or well, most of it, soon.

Why?

    1. Chances are that you might have been negligent.
    2. Chances are that you’ve been spied upon all this while by a smart, cunning and lazy opportunist. There’s a better word for this guy “A Troll”. This Troll could be a fake/shell company or a twisted individual. I just like to call him “Dracula”.

But, how? What do you mean?

Yes, you know that thing about law and legal stuff? It’s actually very important. You might have executed your idea to perfection, you might have profited from your idea too, but did you protect your idea? That is the question. If you haven’t, left it for later, or ignored it completely, then you have been negligent and might I add, stupid.

You see, this guy, this Troll, knows his Legal stuff very well. He protects random innovative ideas for fun (money mostly), gets a legally granted patent/trademark/copyright for his ideas and guess what he does it with it? NOTHING. He won’t develop or build on his ideas, won’t try to license or sell his ideas either. There’s a term for it too, He’s a “Non-practicing entity”.

He’ll just wait for YOU, the hardworking entrepreneur, to unknowingly work on one of his “protected” ideas. He’ll wait till you’ve become popular and made a LOT of money. And then He’ll strike when the iron is hot. He’ll threaten to sue you for stealing/infringing on his “protected” ideas and will demand huge royalties running up to millions. He’ll also threaten to take you to court if you fail to oblige to all the unreasonable demands that he’s put across.

I know some of you have been through this ordeal for real and if you have, you know how harrowing it is, to fend off and fight these trolling mosquitoes. Litigation and lawyer fees will shoot through the roof and drain all your resources until you have nothing left. There’s no way you’ll come out victorious. The system is somehow designed for you to lose.

If you do manage to win (which takes a very long time and highly unlikely) then it’s taken that you’ve already bled enough and what you actually win, is your freedom, freedom from this Troll, that’s all, no money, no bone. If, however, you lose the battle, it simply adds more insult to the injury you’ve already suffered. If, on the contrary, you decide not to challenge this Troll, avoid the conflict, and agree to all his demands, you’d be spoon feeding big chunks of YOUR hard earned money to this Piña colada sipping Troll who wouldn’t have to lift a finger to earn it.

I’m not making this up, you know.

Here’s a random story I found.

Here’s a story closer back home in India.

These are just some of the thousands of cases where hard working entrepreneurs have been targeted and taken advantage of by these Trolls.

So what can you do to avoid being attacked and sucked dry by this Troll Dracula?

    1. First things first, ALWAYS get you legal stuff in order. Protect your idea legally first before you go on to build that awesome startup or business of yours. File that patent, trademark your logo, and copyright your creative work! It costs nothing compared to what you’ll end up losing out on if you do nothing at all!
    2. Keep innovating, keep filing patents. You can’t just rely on one single idea (patented) to see you through the years. Trolls have a knack of working around your ideas and file for related patents that might literally cripple you from innovating on your own inventions!

(This is why Apple, Samsung, IBM, and others are in the news for filing those innumerable patent applications each year. To protect themselves from Trolls and maybe to threaten competition too!)

    1. If you have the monetary resources, buy patent portfolios from smaller companies and independent inventors to protect yourself.
    2. Know what your rights are and always be prepared to fight off trolls. Know what laws are out there to help protect your rights in case of trouble (New Anti-Troll rules are already coming into force in the US). Don’t simply give in to troll demands without your own due diligence. Also check who else has been targeted by this Troll. Maybe you can join hands with other victims and fight the Troll together!
    3. Last but not the least, make your struggle public on all forums, blog posts, and garner support (Rackspace did this). This is sort of like an expose of the scamster and should be fun.

When you have all these points covered and you’ve done your homework, then you have my permission to get obscenely Rich, outrageously Famous, and insanely Successful!

Good Luck!

About the Author
The author, Chethan Kamath advises Startups on all IP related matters.