The “clear and convincing” standard is a key enabler for patent trolls.

In recent years, however, a significant cottage industry has grown up around the lucrative patent model of not manufacturing or inventing anything. Instead, certain enterprises merely buy up patents just sitting on someone's shelves, patents that were never - or in actuality could never be - practiced by the so-called inventor, and dust off these patents for the purpose of extorting nuisance settlements from manufacturers of purportedly related goods. 4 These companies ushered in the era of "patent trolls." 5

Like the fiendish figures of Scandinavian folklore living under bridges and never actually building the bridge through trial and error or sweat and toil, but, nonetheless, trying to prevent passersby from crossing it without paying a toll, the patent troll [*411] never conceives of, builds, or makes the alleged invention work. Even so, the patent troll levies those patents against innocent 6 would-be defendants who opt for a settlement in lieu of the exorbitant costs associated with defending against the high-stakes expense of patent litigation. 7

What is worse, the patent system has allowed these enterprises to brandish "paper patents" in order to coerce a would-be defendant into paying licensing fees to bare-bone, half-baked, and prophetic ideas that were not operable but still managed to make their way through an overworked Patent Office. As used here, a "paper patent" corresponds to a device never actually built or proved by the purported inventor to be workable for its intended purpose before the inventor filed an application that matured as a patent, and therefore, is a device devoid of any commercial value by the patent owner except as a "holdup" 8 device for extorting money, and that would be valuable if some later, true inventor discovers how to make the technology work, such as a "perpetual motion machine" or "cold fusion" that solves the world's energy crisis. 9 Indeed, it can be said that the inventor of a paper patent did not patent any invention but instead only invented a patent. 10

[*412] In a very real sense, the fight casts economics against the nexus of patent law and junk science. Before there were patent laws, the inventor had no guarantee against others using the invention, so now patent law gives the inventor a monopoly for a limited time to exclude others from practicing the invention as claimed in the patent - even what might amount to nothing more than a paper patent. 11 When facing a cease and desist letter from a patent troll wielding a paper patent, however, the recipient can quickly estimate from published literature the likelihood of finding itself in a morass of litigation costs and easily sinking millions in defending against a patent infringement lawsuit. One can little blame the would-be defendants for settling with the patent trolls, because patents are presumed valid as a matter of patent law, 12 which places on the defendant 13 the burden of proving the patent invalid by a standard of clear and convincing evidence. 14 In this competitive market, the decision maker can ill afford to ignore sunk costs in legal fees that bite into the proverbial bottom line, but must instead pay close attention to the reality of attorneys' fees billed in six minute increments.