He invented a real (specific) product with prototypes and everything, licensed that product to a real manufacturer who then made it, gained lots of money, and then stiffed him on the payment they promised.
Trolls would have produced no toy at all, for anyone, kept the whole process a secret, and then sued every child who ever flung water at another at a birthday party.
"Its the difference between using a feather and using a chicken." You know it when you see it.
Edit: Just for clarity, its the direction the arrow points. Lonnie Johnson created a product and then went out and sought a company to start producing it. Trolls do it backwards, they go out and find companies that are already producing it and then threaten them with forcing them to stop.
What about the hypothetical scenario where Hasbro tells him to get lost, then rips off his design and produces the stuff anyway?
As far as I can tell, this scenario is very difficult to distinguish from a patent troll. The only real differentiator is whether or not the patent is actually a novel invention or whether it's just the "click a button on the internet" kind of crap that so many of these things end up being.
>...this scenario is very difficult to distinguish from a patent troll.
It's really not. This guy invented a physical product, got a patent, then licensed it (under contract) to a company to produce exclusively. This is a "valid" use of patents in the intended spirit and is a far cry from trolling.
Hasbro then renegued on the contract and tried to stiff the guy for royalties it had agreed to pay him. The lawsuits filed were not for patent infringement. They were for unpaid royalties and breach of contract.
>...Hasbro tells him to get lost, then rips off his design and produces the stuff anyway?
Well, that's what the courts are for, but it still doesn't make it trolling if he decides to go after them. I guess some people believe that no ideas should be protectable, in which case there shouldn't be a such thing as patents. In that case, anyone seeking a patent would be a de facto troll. But, that's a separate argument. Given that patents do exist, trolling describes a distinct set of behaviors apart from an original inventor seeking to protect his invention.
Don't most patent trolls purchase or license the patents they are suing with as opposed to actually filing them? That seems like a pretty big distinction.
If you rely on that, then you've made it fairly easy for a big company to steamroll over a legitimate small inventor, since they won't have the resources to compete with your legal team, and they can't sell the patent to someone who does have the resources since that person would then be labeled a troll.
Exactly this. This is really the way patents were intended to be used. I think the patent trolls have turned the word "patent" into a dirty word.
But, they have a legitimate role in protecting ideas and thereby incentivizing innovation for inventors/actual creators. It's when trolls go off buying patents in order to charge a toll and/or threaten actual producers that it becomes a form of extortion and gets out of whack.
Exactly right. Trolls try to extort money after the fact. Mr Johnson licensed his idea to the toy company before they started producing it. Lucky for him, his agreement granted him 2% of any 3D product that resembled his invention.
...but he had to patent it before he could license it to him. Between patent and licensing could be infringement. Then he'd be going backward to extort money, right?
Put another way: if the laws are changed to prevent backward "extortion", what incentive is there for Hasbro to license in the first place? Why not just let him come in with the patent, and then willfully infringe? And how do you tell the difference?
Your edit is much clearer than "you know it when you see it" (Justice Stewart), which pretty much represents giving up on any formal definition.
I like your suggestion of detecting trolls by whether they actually transmitted/helped anyone with the invention. There's a problem in patent law, that you're infringing even if independently invented it. (Copyright is different, you only infringe if you actually copied - though see "unconscious copying"). Your suggestion could be implemented, I think, just by getting rid of that. Which might be a good thing, though difficult. It's a big change (though copyright case law and legislation would provide some guidance.)
Of course, inventors need to be able sue people that they didn't help produce it, so the copying part is important.
Alternatively, make it a requirement that you have to make prototypes and put it into production. This is also a big change (though, in the past, a prototype was a requirement). But I think it would be easily gamed, with shell production companies. From the other side, for real inventors, what if production requires substantial capital investment? The producer just refuses, and the patent fails. Maybe other requirements could avoid this, but seems tricky.
> Trolls do it backwards, they go out and find companies that are already producing it and then threaten them with forcing them to stop.
That's a very narrow view of the situation. Ask yourself, where do trolls get these patents? Well, there's at least one study [1] about that, and the answer is pretty complex. But in the context of this thread, the relevant information is that trolls get a significant chunk (about 29%) from individual inventors.
It's important to note that not everyone is like the inventor in TFA. As an individual, it is very difficult to get companies to license your patent, especially since both sides know that the only way to enforce it is a very expensive, complex and uncertain lawsuit. So these inventors may often "outsource" the enforcement to NPEs.
If you want to see this in action, go to CES. Many well-known trolls like Acacia actually have a booth at CES, and most of their traffic is from individuals who drop by to say, "Hey, I have this patent that XYZ probably infringes..."
Trolls would have produced no toy at all, for anyone, kept the whole process a secret, and then sued every child who ever flung water at another at a birthday party.
"Its the difference between using a feather and using a chicken." You know it when you see it.
Edit: Just for clarity, its the direction the arrow points. Lonnie Johnson created a product and then went out and sought a company to start producing it. Trolls do it backwards, they go out and find companies that are already producing it and then threaten them with forcing them to stop.