It is always amusing to watch the intellectual gymnastics of clever people trying to defend the intellectually indefensible.  Seventh Circuit Appellate Judge Richard Posner’r recent, article, "Patent Trolls Be Gone" (You talkin’ to me, Judge?) is entertaining in this regard, as we watch the good judge try to "clarify" the "problems with our patent system, which are profound," before formulating, "feasible solutions."

According to the judge, one of these profound problems is the problem of "patent trolls, as they are called" who "purchase large numbers of patents in the hope of using the threat of a patent-infringement suit to extort a patent-license fee from a company that makes a similar product."  (Emphasis mine.)

Extort?  Since when is enforcing rights formally recognized by a Federal agency extortion?  Strong words to be coming from a supposedly impartial judge.

As noted by the judge, "the alleged infringer may decide to pay the licensee fee, if it is not too large, to avoid the cost of litigation."  But this raises the question of why does it take  $3 million or more in legal fees to dispose of a case that supposedly has no merit in the first place?  Most jurisdictions today have specific local rules for patent cases that call on a patent owner state with specificity in the very early stages of litigation precisely what products are accused of infringement, what claims are alleged to be infringed, and precisely how those claims cover the accused products.  In a truly baseless case, the weakness becomes apparent very early on. (And if the case is that weak, no reasonably ethical lawyer would file it in the first place.)

The comments in the linked article are entertaining and instructive as well.

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Photo of Philip P. Mann Philip P. Mann

Philip P. Mann is a trial lawyer with over twenty years experience litigating patent, trademark, trade secret, and other intellectual property matters throughout the country.

Mann’s trial work has taken him to various federal and state courts where he’s tried both cases to…

Philip P. Mann is a trial lawyer with over twenty years experience litigating patent, trademark, trade secret, and other intellectual property matters throughout the country.

Mann’s trial work has taken him to various federal and state courts where he’s tried both cases to the court (a judge) as well as before juries. In addition to trial court work, Mann has performed appellate work before the United States Court of Appeals for the Federal Circuit.

Mann began his legal career in Chicago and Milwaukee before heading to Seattle where some of America’s most innovative companies were developing new technologies at breakneck speed. Before founding his own firm, he was a member of the Seattle Intellectual Property Law Firm, Christensen O’Connor Johnson Kindness.

Mann is an “AV” rated lawyer by Martindale Hubbell, indicative that he has reached the height of professional excellence and is recognized for the highest levels of skill and integrity.

He holds a degree in Electrical Engineering from the University of Illinois (Urbana) and received his law degree from the Washington University School of Law in St. Louis, Missouri. He is admitted to practice in the States of Illinois and Washington, as well as before the United States Patent and Trademark Office, and in various courts around the country.