Patent trolling, critics say, is guided by one principle alone: money. Yet tackling it remains a complex task with many angles. Today, a consortium called LOT — set up to help improve how the tech world, and the IP industry at large, handle trolling — is launching a new front in its efforts. It's formed a new group called Adapt, an acronym for Advancing Diversity Across Patent Teams, with a mission to identify DEI issues in the IP industry and build programs to address them.
There is a specific but potentially very effective thread that links the worlds of diversity and inclusion with that of intellectual property.
DEI is a strong theme in the world of tech, which has traditionally not been great at inclusivity and has been making efforts to set that on a better course. The legal world is equally problematic on that front. As a result, the world of patent litigation acts almost like a force multiplier: you typically need engineering (or other scientific or technical) degrees as well as law degrees to practice IP law, Microsoft assistant general counsel Judy Yee — who is involved in Adapt — said in an interview, resulting in a even smaller subsets out of already-small diversity pools.
Case in point, research from the American Bar Association from 2020 found that 22% of patent attorneys and agents are women, 6.5% are racially diverse, and just 1.7% are racially diverse women.
The benefits of improving those ratios are of course important just as a matter of doing what is right and equitable for all people, and giving not just more opportunities but more people the knowledge and empowerment to realize those opportunities. As with the tech industry's wish to become more inclusive, it's about putting people in places to make decisions and build things for audiences that are diverse, too. Representing that at the point of service building and provision is critical in making sure that products are fit for that purpose.
Adapt believes that the same goes for the intellectual property industry.
“The reality is that with inclusive innovation, when we pull people in from marginalized communities, we create the best ideas and values and products,” said Micheal Binns, who is associate general counsel at Meta overseeing patent portfolio strategy for Meta's Family of Apps (which refers to Facebook, Instagram, Messenger, and WhatsApp), and is also working on the Adapt project.
LOT's interest in bringing this about comes partly from the fact that it's one of the relatively rare instances of cooperation and collaboration between companies that might otherwise compete fiercely against each other — and might at some point find themselves in IP disputes of their own although these are considered separate from troll activities run by so-called patent enforcement agents, businesses set up with the primary purpose of amassing patents and then going after companies that they believe violate them in order to win settlements. That, plus the organization's wish simply to do better in its own realm, gives it a unique place to advocate for programs that can have larger ramifications.
The group will be kicking off its first activities starting in September. They will include building a database of DEI programs and a directory for volunteer and sponsorship activities from DEI organizations: the idea here is to give companies keen to build more DEI initiatives access to outside resources to do so. It will also run a mentorship program aimed at underrepresented IP professionals specifically. Lastly, it will be building a platform and forum for measuring DEI analytics and sharing knowledge related to that.
Initially, Yee noted, Adapt will be focused on the legal aspect of IP — that is, organizations' attorneys and wider teams working in patent law — but clearly there is an opportunity also to extend that to inventors, those building products and bringing them to legal teams to help secure IP claims.
“We decided for the first phase to focus on the patent profession, but a lot of our efforts bleed into that space,” she said of technical professionals, inventors and those whose aspirations might lead them into that area. “There is a pipeline.”
Patent trolls were a very regular presence in the landscape of technology a decade or so ago, and although you may not hear about patent cases every day nowadays, they are definitely not disappearing.
“Patent trolls are on the rise,” Ken Seddon, the CEO of LOT who previously worked for companies like Apple, Intel and ARM in patent litigation. He cites the currently tough economic climate, with inflation on the rise and the effects of the pandemic leading those who might hold IP assets to make more efforts to enforce them, or more often sell them off to PAEs (patent enforcement entities, the more euphemistic name for trolls), who are in turn making moves to enforce them against operating technology companies.
“The Supreme Court, White House and Congress have far bigger issues to deal with today, so my sense is that they may have given up on patent reform for the high tech industry.” But groups like LOT seem to paint a picture for why that may merit rethinking: it's picked up 1,200 new members since February 2021, Seddon said, with companies including behemoths like TikTok owner ByteDance but also a lot of much smaller companies.
And that feeds well into the mission both at LOT and Adapt:
“We wanted to demystify that you need to be a large company to tackle diversity,” Binns said. And by that logic, the push for more inclusion will also play into helping fight IP abuse and misuse.