Adam Carolla – White Knight

Adam Carolla: The Man Show co-host, Loveline co-host, vigilante against crooked contractors, podcaster…and now, white knight, taking on the patent trolls.

Patent trolls – also commonly referred to as patent assertion entities or non-practicing entities.  They’re the bane of the litigation world right now.  Defining a patent troll is difficult (and controversial), with definitions of and opinions on patent trolls varying across the IP world, but generally a patent troll is a company that owns patents but doesn’t invent those patents or use them to make anything.  Instead, these companies focus on seeking licensing fees or, when that doesn’t work, suing for patent infringement.

These lawsuits have become notorious due, in part, to suits by such groups claiming infringement against multiple businesses for such basic tasks as scanning and emailing documents or using Wi-Fi.  While the targets of such suits may not believe the suits are valid, it’s often cheaper to settle with the trolls instead of mounting a legal defense.  Especially as more small and medium-sized businesses are targeted in patent litigation, with a majority of patent suits last year filed against businesses making less than $10 million annually.

Patent litigation is already extremely expensive, even in the modern world of business litigation, with much of the cost being driven by an area with which I am very familiar: ediscovery.  And recently, suits filed by patent trolls have made up the majority of patent litigation cases filed, as opposed to 2007, when patent troll filings comprised less than a quarter of patent lawsuits filed.  To combat patent troll litigation (among other issues related to patent litigation in the US), President Obama signed into law on September 16, 2011 the America Invents Act.

So what does any of this have anything to do with Adam Carolla?  Earlier this year he became a target of a patent troll, based on his self-owned podcast.  But Carolla isn’t going quietly into that good night. Carolla was sued by Personal Audio, based on a patent it received in 2012 that supposedly covers “the production of serialised or episodic content that can be downloaded from a specific URL that client software can retrieve and store.”

Personal Audio believes this patent means that most major podcasters must pay it a license or be sued for infringing its patent.  According to Carolla, Personal Audio offered to settle with him for $3 million, but he refused, choosing instead to fight back, taking the fight public and starting a legal defense fund.

Patent litigation, as mentioned above, is time-consuming and costly, but Carolla seems in it for the long haul.  And it’s never fun to take on somebody with access to a megaphone.  Just ask anyone who’s ever incurred the wrath of Howard Stern!

(Disclaimer: The article linked to above, with reference to the America Invents Act, was written by a partner in my law firm, Alan Nicgorski.  But I linked to because it’s a great piece on how to deal with patent trolls, not because I work with him!)