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“To some extent, the definition of troll can be ambiguous,” said Neil Smith, an IP lawyer at Sheppard, Mullin, Richter & Hampton in San Francisco. “Licensing is a legitimate use of your patents � if you’re licensing, does that mean you’re a troll, or does that mean you’re not a troll?”
In dividing the IP universe, Howrey defines a patent troll as “an individual or company whose sole business is acquiring patents for the purpose of forcing legitimate companies to take licenses or otherwise pay money � usually through threat of litigation.”
Or as Bunsow puts it: “The bottom-line definition of a patent troll is, ‘out to make a fast buck.’”
Howrey has and does represent some companies that some have labeled as trolls, like Los Altos-based Rambus. Even though the memory chip company gets most of its revenue from licensing and isn’t afraid to sue for infringement, Bunsow said he groups it in with research institutions, like universities, instead of trolls, because it researches and develops its own IP.
Another Howrey client, Canadian semiconductor and wireless licensing company MOSAID, has started to branch out beyond its own IP and buy patents much like a patent holding company. Bunsow said Howrey isn’t litigating with the company’s newly bought patents.
“We’ll continue to do what we’re doing for them at this point,” Bunsow said.
While several IP lawyers chided Howrey for its in-your-face marketing, most acknowledged that the issue is being actively debated by the in-house crowd. Some companies ask up front if your firm does work for patent trolls, they say.
Scott Coonan, director of IP litigation and licensing at Juniper Networks, said he wouldn’t be pleased if his outside counsel worked for a troll he might meet in court. He said he trusts his outside lawyers at Irell & Manella and Kaye Scholer not to.
“I certainly wouldn’t [be happy] if it’s a party that could potentially have an assertion against Juniper,” Coonan said. “I think my firms are sensitized to that”
Jay Monahan, who headed IP at eBay before recently moving to startup Vuze Inc., said that he wouldn’t rule out using a firm just because they’d litigated on behalf of what some might call a patent troll.
“I don’t think it’s so black and white for me � I think some plaintiffs experience can be helpful,” said Monahan, who was notoriously tough about fighting plaintiffs at his former job.
For its part, Howrey has safeguarded its new marketing effort from potential litigants. It claims to have a service mark for the term “troll busters,” which refers to its IP lawyers. But it may not be safe. Troll Busters, a group of Washington state lawyers who work to invalidate patents that holding companies are trying to enforce, says it got the mark first.
“I will call up one of the attorneys listed as a ‘troll buster’ for Howrey, and we’ll settle this matter,” said Jeffrey Oster, one of the attorneys. “The only difference [between the marks] is I have a much cuter troll.”