The literature of the legal and business professions, both print and online, is replete with articles about who’s to blame for the scourge of patent trolls. You’re familiar with the plot: From a lofty perch on high, the writer heaps scorn upon a diverse cast of stooges, villains and accomplices, from the feckless examiners of the Patent and Trademark Office (PTO), who grant patents useful only as licenses to extort, to the allegedly plaintiff-friendly judges, who hold the trolls’ coats while they rummage through the pockets of innocent passersby, to the dastardly trolls themselves. While these rascals may be the usual suspects, I hope to persuade you that someone else shares the blame too. Unfortunately, that someone is us.
But why, you protest? Simple: We feed the trolls. Their food is money and too often, we don’t do enough to make them earn it. Let’s consider the natural history of the patent troll and a couple of underutilized strategies to put them on a diet.
Under certain circumstances, a very powerful way to facilitate cooperation is to participate in a joint defense group (JDG). To continue my now perhaps-tedious analogy: The antelope herd that sticks together has an entire forest of horns available if it has to turn and fight. In the same way, a JDG collectively benefits from the specialized skills of all counsel working for the co-defendants and from the leverage of shared resources.
Indeed, absent a cost- and responsibility-sharing arrangement like a JDG, it is all too common for defendants to individually decide the costs are too high and settle the case. Even if the endgame for the defendants is not victory in court, a JDG can still permit its members to share information, lower overall costs and delegate responsibility for litigation tasks.