Many will recall that back in March 2006, the much anticipated patent settlement between Research In Motion, Ltd. (RIM) and NTP, Inc. was finalized for $612.5 million.  In the five plus years since that settlement there has been a lot of talk about patent trolls, who are now more frequently referred to by the rather sanitized term “non-practicing entities.”  Numerous articles have been written about the plague of patent trolls and many attempts have been undertaken to whittle away at patent rights in an attempt to make it more difficult for non-practicing entities to monetize their patent rights. Meanwhile, practically every independent inventor now believes that they have an invention that some Mega-Giant company is infringing and which entitles them to tens of millions of dollars.  After all NTP was successful.

Indeed, over the years since that great NTP-RIM settlement there has been enormous focus on the $600+ million amount, and little on what lead to that settlement and the aftermath of that settlement, which has changed the patent law landscape.  In some corners when listening to inventors one might almost start to think that any small company with a patent could easily stand up and take on industry giants. This, after all, was the David and Goliath — NTP v. RIM, right? Not so fast.  First, the case was not as simple as it may have seemed. Second, for every David with a patent portfolio, there are numerous Goliaths defending their market shares vigorously. Third, thanks to judicial dislike of patent trolls all non-practicing entities have suffered.  In fact, it is now extremely difficult to obtain an injunction as a non-practicing entity.

The NTPv. RIM case was not as straightforward as many contemporaneous or subsequent reports might imply. One particularly unique aspect was that NTP had rather fundamental patents on a technology that was employed by RIM. Another unique feature of the case was that RIM initially seemed to have a strong infringement defense because the process covered by the NTP patents did not occur completely within the United States. RIM had argued both at trial and on appeal that because the BlackBerry Relay was located in Canada, as a matter of law RIM could not be held liable for infringement under 35 U.S.C. § 271.  I still scratch my head when I think of this case failing to understand exactly how such an extraterritorial expansion of the patent rights was justified.  Regardless of the fact that I probably would have ruled differently had I been on the Federal Circuit, it is completely accurate to recognize that such latitude would not likely be offered a patent troll today given the legal climate and widespread vilification of those bad acting non-practicing entities, who are the ones most often referred to as patent trolls.

via Patent Litigation: Davids Seeking Many Millions from Goliaths | IPWatchdog.com | Patents & Patent Law.