The coining of the term ‘patent troll’ was a key moment in what eventually became a major backlash against non-practising entities (NPE) in the United Sates. Originally thought up within Intel in 1999, the catchy (some would say prejudicial) moniker was soon being employed by leading media outlets. Even if juries or newspaper readers do not know patents, they have almost certainly heard about trolls - and they know that they are "bad". While some judges have banned the term from their courtrooms, studies suggest it is still widely used in news coverage.
Nearly two decades after ‘troll’ rhetoric emerged in the US, NPEs are becoming much more active in China, where NPE litigation is a comparatively new phenomenon. But NPEs are not a new concept to Chinese companies. Foreign NPEs have filed an increasing number of lawsuits in the country over the past year, though most of these have targeted non-domestic companies. As this trend continues, it is interesting to see how these activities are being portrayed in the Chinese media and through the Chinese language.
The official terms are direct translations of ‘non-practising entity’ and ‘patent licensing company’; but the Chinese media has also used more colourful labels for patent assertion entities – here are five of the most common names, along with what they mean:
The meanings of terms like scoundrel, cockroach, shark, pirate and monster are self-explanatory. They prompt images of bullying and frightful or disgusting creatures, revealing a hostile attitude on the part of the Chinese media. But though all the terms are negative, they suggest varied perceptions of the NPE threat. For example, scoundrel and pirate have criminal undertones (at least trolls are transactional – they let you cross the bridge!). Cockroach and shark, on the other hand, come from the natural world, but imply very different dangers: while one is just a nuisance, the other is life-threatening.
All of these Chinese terms for patent trolls are used in reference to foreign entities - my research found the above labels applied to entities including Intellectual Ventures, Acacia, InterDigital and Vringo; so it would seem that the Chinese media, and perhaps local tech companies, hold a basically hostile or defensive attitude towards these foreign NPEs.
However, as far as I can see the terms above have never been used with reference to a Chinese organisation. This could be because there is not a major, established domestic NPE or licensing entity; but we have seen cases brought by companies like Iwncomm and Digital Rise over Chinese standards and local media accounts have not described them using the hostile names thrown at businesses from abroad – we will see if that changes. It will also be interesting to observe whether Chinese universities and research institutions grow active in monetisation activities; if so, will patent scoundrel, cockroach, shark, pirate and monster be used on them?
Language shapes the way people think. How NPEs are described is likely to affect whether the general public sees their business model, and patent enforcement itself, as legitimate. If Chinese industry and governmental agencies care how intellectual property is developing in the country, they would be well-advised to pay attention to how patent owners are described. The US experience shows that should misleading and prejudicial terms be regularly employed in reference to ways in which patents are owned and used, it might not only influence perceptions of specific disputes, but could also cause a backlash against patent rights ownership generally. That would be a very bad development indeed.