How Sun Tzu Would Outflank Patent Trolls

David Wanetick

IncreMental Advantage, Managing Director, Princeton, NJ, USA

Much has been written about strategies employed by patent trolls. Many have opined about the tax they represent to operating companies. Others have lauded trolls for providing markets where inventors can sell their patents for reasonable returns. This article will focus on strategies— many from Sun Tzu, the ancient Chinese military strategist—that operating companies can utilize to outflank patent trolls.

Threat Assessment. PatentFreedom reports that as of December 1, 2009, there were over 315 distinct patent trolls lurking around the world. Since 1985, these trolls have been involved in litigation with nearly 4,500 different operating companies in over 3,100 distinct actions.

Much of this litigation is taking place before juries—who are generally sympathetic to patentees—rather than before judges. According to research conducted by PricewaterhouseCoopers, where juries decided 22 percent of the patent cases with damages awards in the 1990s, the 2000s have seen juries decide 43 percent of the patent cases with damages awards. The success rates for plaintiffs in jury trials have consistently and significantly outperformed plaintiff success rates in bench trials every year from 1997 until at least 2007.