The Troll Busters® Irony: from "buster" to "troll"
By: Jim Lennon
Troll Busters® LLC filed suit last week against a dozen biotech companies alleging that each falsely marked expired patents on their "Taq products and probes to practice polymerase chain reaction ("PCR") and real time PCR." Troll Busters, LLC v. Roche Diagnostics GMBH et al, 3-11-cv-00056 (S.D. CA), p. 10.
Troll Busters® describes itself as an entity that "invalidates patents ... being asserted by patent trolls ... [who] tend to obtain over-broad and largely invalid patent claims and then try to charge a toll to entire industries or even try to charge royalties for even the act of conducting research." See http://www.troll-busters.com/whatDoWeDo.html. Troll Busters® is therefore not an entity that actually competes with other companies to provide a better product or service to the market. Instead, they characterize themselves as "assassins" who work for the greater good of defeating patent trolls. Id.
The irony is that such non-competitor, qui tam relator-plaintiffs are themselves considered "marking trolls". See, e.g., Forest Group, Inc. v. Bon Tool Co., 590 F.3d 1295, 1303 (Fed. Cir. 2009) ("Commentators have discussed a surge of such actions in recent years, noting the possible rise of “marking trolls” who bring litigation purely for personal gain.") (citing Donald W. Rupert, Trolling for Dollars: A New Threat to Patent Owners, 21 No. 3 Intell. Prop. & Tech. L.J. 1 (2009); and A. Justin Poplin, Avoiding False Patent Marking Claims, Law 360, October 9, 2009, http:// www. law 360. com/ articles/ 116798). And while the Department of Justice urges the Federal Circuit to adopt a higher pleading standard for false marking claims to stem the tide of nuisance troll litigation, Troll Busters® fails to plead the facts to demonstrate that its cause is anything but profiteering through patent loopholes, which it purports to condemn.
Regardless of its name or motives, Troll Busters® must address this dilemma for the licensee defendants named in its suit: how can a patent licensee who is required by license to mark the listed patents be presumed to have marked those patents for the purpose of deceiving the public? The Middle District of North Carolina touched on this issue and also found plaintiff's implication of deceit troubling where the licensee marks because of a legal obligation. The N.C. Farmers' Assistance Fund, Inc. v. Monsanto Co., --- F.Supp.2d ----, 2010 WL 3817349, *10 (M.D.N.C. 2010) ("... each of the remaining Defendants are alleged to be licensees who are required by contract to mark their soybean seed bags with the ′605 Patent number. (Doc. 1 ¶ 20.) The complaint fails to allege any facts demonstrating how it is plausible that such licensees, who are bound by contract, would have marked their product with an intent to deceive.").
Troll Busters® describes itself as an entity that "invalidates patents ... being asserted by patent trolls ... [who] tend to obtain over-broad and largely invalid patent claims and then try to charge a toll to entire industries or even try to charge royalties for even the act of conducting research." See http://www.troll-busters.com/whatDoWeDo.html. Troll Busters® is therefore not an entity that actually competes with other companies to provide a better product or service to the market. Instead, they characterize themselves as "assassins" who work for the greater good of defeating patent trolls. Id.
The irony is that such non-competitor, qui tam relator-plaintiffs are themselves considered "marking trolls". See, e.g., Forest Group, Inc. v. Bon Tool Co., 590 F.3d 1295, 1303 (Fed. Cir. 2009) ("Commentators have discussed a surge of such actions in recent years, noting the possible rise of “marking trolls” who bring litigation purely for personal gain.") (citing Donald W. Rupert, Trolling for Dollars: A New Threat to Patent Owners, 21 No. 3 Intell. Prop. & Tech. L.J. 1 (2009); and A. Justin Poplin, Avoiding False Patent Marking Claims, Law 360, October 9, 2009, http:// www. law 360. com/ articles/ 116798). And while the Department of Justice urges the Federal Circuit to adopt a higher pleading standard for false marking claims to stem the tide of nuisance troll litigation, Troll Busters® fails to plead the facts to demonstrate that its cause is anything but profiteering through patent loopholes, which it purports to condemn.
Regardless of its name or motives, Troll Busters® must address this dilemma for the licensee defendants named in its suit: how can a patent licensee who is required by license to mark the listed patents be presumed to have marked those patents for the purpose of deceiving the public? The Middle District of North Carolina touched on this issue and also found plaintiff's implication of deceit troubling where the licensee marks because of a legal obligation. The N.C. Farmers' Assistance Fund, Inc. v. Monsanto Co., --- F.Supp.2d ----, 2010 WL 3817349, *10 (M.D.N.C. 2010) ("... each of the remaining Defendants are alleged to be licensees who are required by contract to mark their soybean seed bags with the ′605 Patent number. (Doc. 1 ¶ 20.) The complaint fails to allege any facts demonstrating how it is plausible that such licensees, who are bound by contract, would have marked their product with an intent to deceive.").
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