For Segal, the black and white hues of the actors seem pretty clear, as he concludes his piece with following observation: "…Peter Braxton's story suggests that there is really only one way to deal with a patent bully: team up with a bigger bully." While this summary makes for a good sound bite as the sardonic dénouement of a morality play, I think it does a bit of a disservice to the more nuanced context in which patent trolls operate. In particular, Segal seems to view the world of patent trolls as a closed lake (with apologizes for the metamorphosis of "trolls") in which defenceless entrepreneurial fish are preyed upon by sharks of various sizes. Under such an approach, the only strategy available for the entrepreneur is "the enemy of my enemy is my friend", under the assumption that the only thing that a patent troll may enjoy more than preying on a defenceless entrepreneur is to best a competing troll for the patent prize.
It seems to me, however, that the better way to understand what took place in the New York Times piece is to view it in terms of shifting marketing dynamics. I spoke several months ago with a veteran of the IP commercialization world in Silicon Valley. She recounted how disheartened she was in encountering twenty-something investors, with or no IP background, who are seeking to create funds of tens of millions of dollars in support of what seems to be straight-up troll-like activity. This is the kind of disconnect between the traditional purpose of patent system to encourage innovation and invention, on the one hand, and the lucrative opportunities to game the litigation system to reap potentially large pay-outs from vulnerable defendants, on the other, that has led to the current furor against not only so-called patent trolls, but the patent system itself.
As Arthur Levitt, the former head of the U.S. Securities and Exchange Commission, intimated in a radio interview this week, the opportunity to make millions of dollars on the back of arguably (or palpably) illegal conduct means that illicit behaviour will likely always be part of Wall Street, human nature being what it is. In the case of patent trolls, at least, there is little or no accusation that they are acting in an illegal matter. To the contrary, the story of Mr. Braxton, Smart Options, Mr. Spangenberg and IPNav suggests that at least some of the actors in this world are increasingly behaving like main-stream (at least in a context akin to venture capital) investors. Accordingly an opportunity is identified and an agreement is reached that arguably benefits both parties: the investor and the entrepreneur. True, the latter may be able to dictate the terms, but that is often the case in a garden-variety investment in a start-up. At the end of the day, the deal still has to enable the start-up to achieve its commercial goals for the mutual benefit of the parties.
Seen in this way, Mr. Spangenberg is simply being quicker off the mark in spotting the business opportunity, given his familiarity with the circumstances involved. There is nothing that precludes others for investing in a similar fashion. Not quite David Segal's morality play, but rather a more promising outcome for trying to mitigate the damages caused by the deep-rooted inefficiencies in the patent system.
