Troll: “Supernatural beings . . . who dwell in isolated rocks, mountains, or caves, who live together in small family units far from human habitation, who are rarely helpful to human beings . . . and whose appearance varies greatly – (they may be ugly and slow-witted or look and behave exactly like human beings, with no particularly grotesque characteristic about them.) (The latter, perhaps, the one that applies to patent trolls.) Wiki

Patent Troll: an often-derisive term referring to firms that acquire patents solely for the purpose of demanding high royalties or winning settlements from established manufacturers. Such firms have been the target of intense lobbying in Washington by technology companies looking for the fastest and cheapest way to dispose of such cases. Bloomberg

Patent trolls were recently dealt a setback in GPNE Corp. v. Apple Inc., 5:12-cv-02885, prompting the age old question, are Trolls bad or just misunderstood.  The answer is usually dictated by how the question is asked. For example, is an entity that vexatiously sues others based on intellectual property resulting in steep legal costs for defendants good or bad? We say that’s bad. However, if asked another way, with a resultantly-different answer, is an entity that exists to file lawsuits as a means of compensating inventors who could not otherwise monetize their inventions good or bad?  We say that’s good.

Some are arguing that Apple’s much-ballyhooed decision may help diminish the confidence of patent trolls.  We both hope so and hope not – as noted, patent trolls are not all bad, and at times serve the important purpose of asserting valid rights of the “Davids” against the “Goliaths.”

By way of background, GPNE sued Apple for patent infringement in 2011 over a pair of subsisting patents claiming “technology for communicating across cellular networks.”  On October 20, 2014 a jury empanelled in the Northern District of California rendered a verdict in Apple’s favor.  But wait a minute, while it found that Apple did not infringe the claims of the asserted patent, it also found those very same claims to be valid and enforceable.  So the “jury’s out” on whether GPNE is a “good” troll or a “bad” troll.

Perhaps the funniest aspect of the case is the fact that Judge Lucy Koh, the same judge who was on the bench during the Apple v. Samsung case, issued an order prior to the trial that forbade Apple from using the term “patent troll” during trial, but permitted usage of the term “non-practicing entity.” For those who need to know, and in the spirit of the season, “No, Virginia, a ‘Non-practicing entity’ is not a being from folklore.” Of course, this was also the “sticks and stones” portion of the trial, that part of the trial particularly important to trolls.

For those with a thirst for details, the jury considered, amongst other things, whether GPNE had proven by a preponderance of the evidence that Apple infringed: (a) Claim 44 of the GPNE patent claiming the GPRS 3G data transfer technology; and/or (b) Claim 22 of the GPNE patent claiming GPRS and LTE communication standards by manufacturing and selling the iPhone 4, 4S, 5, the iPad 2, 3, and the iPad mini.  The jury considered both literal infringement and infringement by the Doctrine of Equivalents.  To literally infringe a patent claim, an allegedly infringing device or process must include each and every element of the patent claim asserted.  To infringe a patent claim under the Doctrine of Equivalents, an allegedly infringing device or process must “performs substantially the same function in substantially the same way to achieve substantially the same result” after consideration of the prior art.  In the case of Apple and GPNE, the jury found that none of the Apple products violated GPNE’s GPRS patent claim under either theory.

For the writers however, the most interesting aspect was that the jury found the claims of the GPNE patents in questions to be valid and enforceable.  As such, while Apple may have proven that it was not an infringer, in this case, the Plaintiff “patent troll” also withstood the “crucible” of the litigation process, and at least Judge Koh felt the case too close for her to call and, as required by our Constitution, left it for the jury to decide.  In our experience, for a federal judge to empanel a jury and for the case to then withstand all the usual motions to dispose of it during the trial, it had to be a fairly close call and clearly a meritorious action.  Simply stated, we can guarantee that this was not simply a vexatious attempt to “extort” money.

Notwithstanding the validity of the patent and the merit of the underlying action, Apple immediately released a strong official statement calling GPNE a “patent troll” and GPNE’s infringement suit as “an attempt to extort money…wasting time for everyone involved.”  Apple concluded its statement by “urg[ing] congressional leaders to continue focusing on reform in this important area of patent law.”

Our take on that: it’s bad enough that Apple is monopolistic/duopolistic, but now it wants Congress to enact laws that stop “David” from meritoriously asserting valid claims against it, the “Goliath?” Why not only allow patents to issue to entities earning in excess of a billion dollars a year?  Oh yeah, this just in, Samsung earns a billion dollars a year and we all know how Apple feels about Samsung.  The moral of this story, sour grapes for Apple and no apples for trolls.