Scientific misconduct

From Wikipedia, the free encyclopedia

Scientific misconduct is the violation of the standard codes of scholarly conduct and ethical behavior in the publication of professional scientific research. A Lancet review on Handling of Scientific Misconduct in Scandinavian countries provides the following sample definitions: (reproduced in The COPE report 1999.)

• Danish definition: "Intention or gross negligence leading to fabrication of the scientific message or a false credit or emphasis given to a scientist"
• Swedish definition: "Intention[al] distortion of the research process by fabrication of data, text, hypothesis, or methods from another researcher's manuscript form or publication; or distortion of the research process in other ways."

The consequences of scientific misconduct can be damaging for perpetrators and journal audience and for any individual who exposes it. In addition there are public health implications attached to the promotion of medical or other interventions based on false or fabricated research findings.

Three percent of the 3,475 research institutions that report to the US Department of Health and Human Services' Office of Research Integrity, indicate some form of scientific misconduct. However the ORI will only investigate allegations of impropriety where research was funded by federal grants. They routinely monitor such research publication for red flags and their investigation is subject to a statute of limitations. Other private organizations like the Committee of Medical Journal Editors (COJE) can only police their own members.

The validity of the methods and results of scientific papers are often scrutinized in journal clubs. In this venue, members can decide amongst themselves with the help of peers if a scientific paper's ethical standards are met.

Motivation to commit scientific misconduct

According to David Goodstein of Caltech, there are motivators for scientists to commit misconduct, which are briefly summarised here.

Career pressure

Science is still a very strongly career-driven discipline. Scientists depend on a good reputation to receive ongoing support and funding, and a good reputation relies largely on the publication of high-profile scientific papers. Hence, there is a strong imperative to "publish or perish". Clearly, this may motivate desperate (or fame-hungry) scientists to fabricate results.

Ease of fabrication

In many scientific fields, results are often difficult to reproduce accurately, being obscured by noise, artifacts, and other extraneous data. That means that even if a scientist does falsify data, they can expect to get away with it – or at least claim innocence if their results conflict with others in the same field. There are no "scientific police" who are trained to fight scientific crimes; all investigations are made by experts in science but amateurs in dealing with criminals. It is relatively easy to cheat although difficult to know exactly how many scientists fabricate data.

Forms of scientific misconduct

The U.S. National Science Foundation defines three types of research misconduct: fabrication, falsification, and plagiarism.

• Fabrication is making up results and recording or reporting them. This is sometimes referred to as "drylabbing". A more minor form of fabrication is where references are included to give arguments the appearance of widespread acceptance, but are actually fake, or do not support the argument.
• Falsification is manipulating research materials, equipment, or processes or changing or omitting data or results such that the research is not accurately represented in the research record.
• Plagiarism is the appropriation of another person's ideas, processes, results, or words without giving appropriate credit. One form is the appropriation of the ideas and results of others, and publishing as to make it appear the author had performed all the work under which the data was obtained. A subset is citation plagiarism – willful or negligent failure to appropriately credit other or prior discoverers, so as to give an improper impression of priority. This is also known as, "citation amnesia", the "disregard syndrome" and "bibliographic negligence". Arguably, this is the most common type of scientific misconduct. Sometimes it is difficult to guess whether authors intentionally ignored a highly relevant cite or lacked knowledge of the prior work. Discovery credit can also be inadvertently reassigned from the original discoverer to a better-known researcher. This is a special case of the Matthew effect.
  • Plagiarism-fabrication – the act of taking an unrelated figure from an unrelated publication and reproducing it exactly in a new publication, claiming that it represents new data.
  • Self-plagiarism – or multiple publication of the same content with different titles or in different journals is sometimes also considered misconduct; scientific journals explicitly ask authors not to do this. It is referred to as "salami" (i.e. many identical slices) in the jargon of medical journal editors. According to some editors this includes publishing the same article in a different language.

Other types of research misconduct are also recognized:

• Ghostwriting – the phenomenon where someone other than the named author(s) makes a major contribution. Typically, this is done to mask contributions from authors with a conflict of interest.
• Conversely, research misconduct is not limited to not listing authorship, but also includes the act of conferring authorship on those that have not made substantial contributions to the research. This is done by senior researchers who muscle their way onto the papers of inexperienced junior researchers as well as others that stack authorship in an effort to guarantee publication. This is much harder to prove due to a lack of consistency in defining "authorship" or "substantial contribution".

Photo manipulation

Compared to other forms of scientific misconduct, image fraud (manipulation of images to distort their meaning) is of particular interest since it can frequently be detected by external parties. In 2006, the Journal of Cell Biology gained publicity for instituting tests to detect photo manipulation in papers that were being considered for publication. This was in response to the increased usage of programs such as Adobe Photoshop by scientists, which facilitate photo manipulation. Since then more publishers, including the Nature Publishing Group, have instituted similar tests and require authors to minimize and specify the extent of photo manipulation when a manuscript is submitted for publication. However, there is little evidence to indicate that such tests are applied rigorously. One Nature paper published in 2009 has subsequently been reported to contain around 20 separate instances of image fraud.

Although the type of manipulation that is allowed can depend greatly on the type of experiment that is presented and also differ from one journal to another, in general the following manipulations are not allowed:

• splicing together different images to represent a single experiment
• changing brightness and contrast of only a part of the image
• any change that conceals information, even when it is considered to be aspecific, which includes:
  • changing brightness and contrast to leave only the most intense signal
  • using clone tools to hide information
• showing only a very small part of the photograph so that additional information is not visible

Responsibility of authors and of coauthors

All authors of a scientific publication are expected to have made reasonable attempts to check findings submitted to academic journals for publication. 

Simultaneous submission of scientific findings to more than one journal or duplicate publication of findings is usually regarded as misconduct, under what is known as the Ingelfinger rule, named after the editor of the New England Journal of Medicine 1967-1977, Franz Ingelfinger.

Guest authorship (where there is stated authorship in the absence of involvement, also known as gift authorship) and ghost authorship (where the real author is not listed as an author) are commonly regarded as forms of research misconduct. In some cases coauthors of faked research have been accused of inappropriate behavior or research misconduct for failing to verify reports authored by others or by a commercial sponsor. Examples include the case of Gerald Schatten who co-authored with Hwang Woo-Suk, the case of Professor Geoffrey Chamberlain named as guest author of papers fabricated by Malcolm Pearce, (Chamberlain was exonerated from collusion in Pearce's deception) – and the coauthors with Jan Hendrik Schön at Bell Laboratories. More recent cases include that of Charles Nemeroff, then the editor-in-chief of Neuropsychopharmacology, and a well-documented case involving the drug Actonel.

Authors are expected to keep all study data for later examination even after publication. The failure to keep data may be regarded as misconduct. Some scientific journals require that authors provide information to allow readers to determine whether the authors might have commercial or non-commercial conflicts of interest. Authors are also commonly required to provide information about ethical aspects of research, particularly where research involves human or animal participants or use of biological material. Provision of incorrect information to journals may be regarded as misconduct. Financial pressures on universities have encouraged this type of misconduct. The majority of recent cases of alleged misconduct involving undisclosed conflicts of interest or failure of the authors to have seen scientific data involve collaborative research between scientists and biotechnology companies (Nemeroff, Blumsohn).

Responsibilities of research institutions

In general, defining whether an individual is guilty of misconduct requires a detailed investigation by the individual's employing academic institution. Such investigations require detailed and rigorous processes and can be extremely costly. Furthermore, the more senior the individual under suspicion, the more likely it is that conflicts of interest will compromise the investigation. In many countries (with the notable exception of the United States) acquisition of funds on the basis of fraudulent data is not a legal offence and there is consequently no regulator to oversee investigations into alleged research misconduct. Universities therefore have few incentives to investigate allegations in a robust manner, or act on the findings of such investigations if they vindicate the allegation.

Well publicised cases illustrate the potential role that senior academics in research institutions play in concealing scientific misconduct. A King's College (London) internal investigation showed research findings from one of their researchers to be 'at best unreliable, and in many cases spurious' but the college took no action, such as retracting relevant published research or preventing further episodes from occurring. It was only 10 years later, when an entirely separate form of misconduct by the same individual was being investigated by the General Medical Council, that the internal report came to light.

In a more recent case an internal investigation at the National Centre for Cell Science (NCCS), Pune determined that there was evidence of misconduct by Dr. Gopal Kundu, but an external committee was then organised which dismissed the allegation, and the NCCS issued a memorandum exonerating the authors of all charges of misconduct. Undeterred by the NCCS exoneration, the relevant journal (Journal of Biological Chemistry) withdrew the paper based on its own analysis.

Responsibilities of uninvolved scientific colleagues

Some academics believe that scientific colleagues who suspect scientific misconduct should consider taking informal action themselves, or reporting their concerns. This question is of great importance since much research suggests that it is very difficult for people to act or come forward when they see unacceptable behavior, unless they have help from their organizations. A "User-friendly Guide," and the existence of a confidential organizational ombudsman may help people who are uncertain about what to do, or afraid of bad consequences for their speaking up.

Responsibility of journals

Journals are responsible for safeguarding the research record and hence have a critical role in dealing with suspected misconduct. This is recognised by the Committee on Publication Ethics (COPE) which has issued clear guidelines on the form (e.g. retraction) that concerns over the research record should take.

• The COPE guidelines state that journal editors should consider retracting a publication if they have clear evidence that the findings are unreliable, either as a result of misconduct (e.g. data fabrication) or honest error (e.g. miscalculation or experimental error). Retraction is also appropriate in cases of redundant publication, plagiarism and unethical research.
• Journal editors should consider issuing an expression of concern if they receive inconclusive evidence of research or publication misconduct by the authors, there is evidence that the findings are unreliable but the authors' institution will not investigate the case, they believe that an investigation into alleged misconduct related to the publication either has not been, or would not be, fair and impartial or conclusive, or an investigation is underway but a judgement will not be available for a considerable time.
• Journal editors should consider issuing a correction if a small portion of an otherwise reliable publication proves to be misleading (especially because of honest error), or the author / contributor list is incorrect (i.e. a deserving author has been omitted or somebody who does not meet authorship criteria has been included).

Evidence emerged in 2012 that journals learning of cases where there is strong evidence of possible misconduct, with issues potentially affecting a large portion of the findings, frequently fail to issue an expression of concern or correspond with the host institution so that an investigation can be undertaken. In one case the Journal of Clinical Oncology issued a Correction despite strong evidence that the original paper was invalid. In another case, Nature allowed a Corrigendum to be published despite clear evidence of image fraud. Subsequent Retraction of the paper required the actions of an independent whistleblower.

The cases of Joachim Boldt and Yoshitaka Fujii in anaesthesiology focussed attention on the role that journals play in perpetuating scientific fraud as well as how they can deal with it. In the Boldt case, the Editors-in-Chief of 18 specialist journals (generally anaesthesia and intensive care) made a joint statement regarding 88 published clinical trials conducted without Ethics Committee approval. In the Fujii case, involving nearly 200 papers, the journal Anesthesia & Analgesia, which published 24 of Fujii's papers, has accepted that its handling of the issue was inadequate. Following publication of a Letter to the Editor from Kranke and colleagues in April 2000, along with a non-specific response from Dr. Fujii, there was no follow-up on the allegation of data manipulation and no request for an institutional review of Dr. Fujii's research. Anesthesia & Analgesia went on to publish 11 additional manuscripts by Dr. Fujii following the 2000 allegations of research fraud, with Editor Steven Shafer stating in March 2012 that subsequent submissions to the Journal by Dr. Fujii should not have been published without first vetting the allegations of fraud. In April 2012 Shafer led a group of editors to write a joint statement, in the form of an ultimatum made available to the public, to a large number of academic institutions where Fujii had been employed, offering these institutions the chance to attest to the integrity of the bulk of the allegedly fraudulent papers.

Consequences for science

The consequences of scientific fraud vary based on the severity of the fraud, the level of notice it receives, and how long it goes undetected. For cases of fabricated evidence, the consequences can be wide-ranging, with others working to confirm (or refute) the false finding, or with research agendas being distorted to address the fraudulent evidence. The Piltdown Man fraud is a case in point: The significance of the bona-fide fossils that were being found was muted for decades because they disagreed with Piltdown Man and the preconceived notions that those faked fossils supported. In addition, the prominent paleontologist Arthur Smith Woodward spent time at Piltdown each year until he died, trying to find more Piltdown Man remains. The misdirection of resources kept others from taking the real fossils more seriously and delayed the reaching of a correct understanding of human evolution. (The Taung Child, which should have been the death knell for the view that the human brain evolved first, was instead treated very critically because of its disagreement with the Piltdown Man evidence.) 

In the case of Prof Don Poldermans, the misconduct occurred in reports of trials of treatment to prevent death and myocardial infarction in patients undergoing operations. The trial reports were relied upon to issue guidelines that applied for many years across North America and Europe.

In the case of Dr Alfred Steinschneider, two decades and tens of millions of research dollars were lost trying to find the elusive link between infant sleep apnea, which Steinschneider said he had observed and recorded in his laboratory, and sudden infant death syndrome (SIDS), of which he stated it was a precursor. The cover was blown in 1994, 22 years after Steinschneider's 1972 Pediatrics paper claiming such an association, when Waneta Hoyt, the mother of the patients in the paper, was arrested, indicted and convicted on five counts of second-degree murder for the smothering deaths of her five children. While that in itself was bad enough, the paper, presumably written as an attempt to save infants' lives, ironically was ultimately used as a defense by parents suspected in multiple deaths of their own children in cases of Münchausen syndrome by proxy. The 1972 Pediatrics paper was cited in 404 papers in the interim and is still listed on Pubmed without comment.

Consequences for those who expose misconduct

The potentially severe consequences for individuals who are found to have engaged in misconduct also reflect on the institutions that host or employ them and also on the participants in any peer review process that has allowed the publication of questionable research. This means that a range of actors in any case may have a motivation to suppress any evidence or suggestion of misconduct. Persons who expose such cases, commonly called whistleblowers, can find themselves open to retaliation by a number of different means. These negative consequences for exposers of misconduct have driven the development of whistle blowers charters – designed to protect those who raise concerns. A whistleblower is almost always alone in their fight – their career becomes completely dependent on the decision about alleged misconduct. If the accusations prove false, their career is completely destroyed, but even in case of positive decision the career of the whistleblower can be under question: their reputation of "troublemaker" will prevent many employers from hiring them. There is no international body where a whistleblower could give their concerns. If a university fails to investigate suspected fraud or provides a fake investigation to save their reputation the whistleblower has no right of appeal.

Exposure of fraudulent data

With the advancement of the internet, there are now several tools available to aid in the detection of plagiarism and multiple publication within biomedical literature. One tool developed in 2006 by researchers in Dr. Harold Garner's laboratory at the University of Texas Southwestern Medical Center at Dallas is Déjà vu, an open-access database containing several thousand instances of duplicate publication. All of the entries in the database were discovered through the use of text data mining algorithm eTBLAST, also created in Dr. Garner's laboratory. The creation of Déjà vu and the subsequent classification of several hundred articles contained therein have ignited much discussion in the scientific community concerning issues such as ethical behavior, journal standards, and intellectual copyright. Studies on this database have been published in journals such as Nature and Science, among others.

Other tools which may be used to detect fraudulent data include error analysis. Measurements generally have a small amount of error, and repeated measurements of the same item will generally result in slight differences in readings. These differences can be analyzed, and follow certain known mathematical and statistical properties. Should a set of data appear to be too faithful to the hypothesis, i.e., the amount of error that would normally be in such measurements does not appear, a conclusion can be drawn that the data may have been forged. Error analysis alone is typically not sufficient to prove that data have been falsified or fabricated, but it may provide the supporting evidence necessary to confirm suspicions of misconduct.

Data sharing

Kirby Lee and Lisa Bero suggest, "Although reviewing raw data can be difficult, time-consuming and expensive, having such a policy would hold authors more accountable for the accuracy of their data and potentially reduce scientific fraud or misconduct."

Notable individual cases

Andrew Wakefield, who claimed links between the MMR vaccine, autism and inflammatory bowel disease. He was found guilty of dishonesty in his research and banned from medicine by the UK General Medical Council following an investigation by Brian Deer of the London Sunday Times.

Perpetual motion

From Wikipedia, the free encyclopedia

Robert Fludd's 1618 "water screw" perpetual motion machine from a 1660 wood engraving. This device is widely credited as the first recorded attempt to describe such a device in order to produce useful work, that of driving millstones. Although the machine would not work, the idea was that water from the top tank turns a water wheel (bottom-left), which drives a complicated series of gears and shafts that ultimately rotate the Archimedes' screw (bottom-center to top-right) to pump water to refill the tank. The rotary motion of the water wheel also drives two grinding wheels (bottom-right) and is shown as providing sufficient excess water to lubricate them.

 

Perpetual motion is motion of bodies that continues indefinitely. A perpetual motion machine is a hypothetical machine that can do work indefinitely without an energy source. This kind of machine is impossible, as it would violate the first or second law of thermodynamics.

These laws of thermodynamics apply regardless of the size of the system. For example, the motions and rotations of celestial bodies such as planets may appear perpetual, but are actually subject to many processes that slowly dissipate their kinetic energy, such as solar wind, interstellar medium resistance, gravitational radiation and thermal radiation, so they will not keep moving forever.

Thus, machines that extract energy from finite sources will not operate indefinitely, because they are driven by the energy stored in the source, which will eventually be exhausted. A common example is devices powered by ocean currents, whose energy is ultimately derived from the Sun, which itself will eventually burn out. Machines powered by more obscure sources have been proposed, but are subject to the same inescapable laws, and will eventually wind down.

In 2017, new states of matter, time crystals, were discovered in which on a microscopic scale the component atoms are in continual repetitive motion, thus satisfying the literal definition of "perpetual motion". However, these do not constitute perpetual motion machines in the traditional sense or violate thermodynamic laws because they are in their quantum ground state, so no energy can be extracted from them; they have "motion without energy".

History

The history of perpetual motion machines dates back to the Middle Ages. For millennia, it was not clear whether perpetual motion devices were possible or not, but the development of modern theories of thermodynamics has shown that they are impossible. Despite this, many attempts have been made to construct such machines, continuing into modern times. Modern designers and proponents often use other terms, such as "over unity", to describe their inventions.

Basic principles

Oh ye seekers after perpetual motion, how many vain chimeras have you pursued? Go and take your place with the alchemists.

— Leonardo da Vinci, 1494

There is a scientific consensus that perpetual motion in an isolated system violates either the first law of thermodynamics, the second law of thermodynamics, or both. The first law of thermodynamics is a version of the law of conservation of energy. The second law can be phrased in several different ways, the most intuitive of which is that heat flows spontaneously from hotter to colder places; relevant here is that the law observes that in every macroscopic process, there is friction or something close to it; another statement is that no heat engine (an engine which produces work while moving heat from a high temperature to a low temperature) can be more efficient than a Carnot heat engine.

In other words:

• In any isolated system, one cannot create new energy (law of conservation of energy). As a result, the thermal efficiency—the produced work power divided by the input heating power—cannot be greater than one.
• The output work power of heat engines is always smaller than the input heating power. The rest of the heat energy supplied is wasted as heat to the ambient surroundings. The thermal efficiency therefore has a maximum, given by the Carnot efficiency, which is always less than one.
• The efficiency of real heat engines is even lower than the Carnot efficiency due to irreversibility arising from the speed of processes, including friction.

Statements 2 and 3 apply to heat engines. Other types of engines which convert e.g. mechanical into electromagnetic energy, cannot operate with 100% efficiency, because it is impossible to design any system that is free of energy dissipation. 

Machines which comply with both laws of thermodynamics by accessing energy from unconventional sources are sometimes referred to as perpetual motion machines, although they do not meet the standard criteria for the name. By way of example, clocks and other low-power machines, such as Cox's timepiece, have been designed to run on the differences in barometric pressure or temperature between night and day. These machines have a source of energy, albeit one which is not readily apparent so that they only seem to violate the laws of thermodynamics.

Even machines which extract energy from long-lived sources - such as ocean currents - will run down when their energy sources inevitably do. They are not perpetual motion machines because they are consuming energy from an external source and are not isolated systems.

Classification

One classification of perpetual motion machines refers to the particular law of thermodynamics the machines purport to violate:

• A perpetual motion machine of the first kind produces work without the input of energy. It thus violates the first law of thermodynamics: the law of conservation of energy.
• A perpetual motion machine of the second kind is a machine which spontaneously converts thermal energy into mechanical work. When the thermal energy is equivalent to the work done, this does not violate the law of conservation of energy. However, it does violate the more subtle second law of thermodynamics. The signature of a perpetual motion machine of the second kind is that there is only one heat reservoir involved, which is being spontaneously cooled without involving a transfer of heat to a cooler reservoir. This conversion of heat into useful work, without any side effect, is impossible, according to the second law of thermodynamics.
• A perpetual motion machine of the third kind is usually (but not always) defined as one that completely eliminates friction and other dissipative forces, to maintain motion forever (due to its mass inertia). (Third in this case refers solely to the position in the above classification scheme, not the third law of thermodynamics.) It is impossible to make such a machine, as dissipation can never be completely eliminated in a mechanical system, no matter how close a system gets to this ideal (see examples in the Low Friction section).

Impossibility

October 1920 issue of Popular Science magazine, on perpetual motion. Although scientists have established them to be impossible under the laws of physics, perpetual motion continues to capture the imagination of inventors. The device shown is a "mass leverage" device, where the spherical weights on the right have more leverage than those on the left, supposedly creating a perpetual rotation. However, there are a greater number of weights on the left, balancing the device.

 

"Epistemic impossibility" describes things which absolutely cannot occur within our current formulation of the physical laws. This interpretation of the word "impossible" is what is intended in discussions of the impossibility of perpetual motion in a closed system.

The conservation laws are particularly robust from a mathematical perspective. Noether's theorem, which was proven mathematically in 1915, states that any conservation law can be derived from a corresponding continuous symmetry of the action of a physical system. For example, if the true laws of physics remain invariant over time then the conservation of energy follows. On the other hand, if the conservation laws are invalid, then the foundations of physics would need to change.

Scientific investigations as to whether the laws of physics are invariant over time use telescopes to examine the universe in the distant past to discover, to the limits of our measurements, whether ancient stars were identical to stars today. Combining different measurements such as spectroscopy, direct measurement of the speed of light in the past and similar measurements demonstrates that physics has remained substantially the same, if not identical, for all of observable time spanning billions of years.

The principles of thermodynamics are so well established, both theoretically and experimentally, that proposals for perpetual motion machines are universally met with disbelief on the part of physicists. Any proposed perpetual motion design offers a potentially instructive challenge to physicists: one is certain that it cannot work, so one must explain how it fails to work. The difficulty (and the value) of such an exercise depends on the subtlety of the proposal; the best ones tend to arise from physicists' own thought experiments and often shed light upon certain aspects of physics. So, for example, the thought experiment of a Brownian ratchet as a perpetual motion machine was first discussed by Gabriel Lippmann in 1900 but it was not until 1912 that Marian Smoluchowski gave an adequate explanation for why it cannot work. However, during that twelve-year period scientists did not believe that the machine was possible. They were merely unaware of the exact mechanism by which it would inevitably fail.

The law that entropy always increases, holds, I think, the supreme position among the laws of Nature. If someone points out to you that your pet theory of the universe is in disagreement with Maxwell's equations — then so much the worse for Maxwell's equations. If it is found to be contradicted by observation — well, these experimentalists do bungle things sometimes. But if your theory is found to be against the second law of thermodynamics I can give you no hope; there is nothing for it but to collapse in deepest humiliation.

— Sir Arthur Stanley Eddington, The Nature of the Physical World (1927)

In the mid 19th-century Henry Dircks investigated the history of perpetual motion experiments, writing a vitriolic attack on those who continued to attempt what he believed to be impossible:

There is something lamentable, degrading, and almost insane in pursuing the visionary schemes of past ages with dogged determination, in paths of learning which have been investigated by superior minds, and with which such adventurous persons are totally unacquainted. The history of Perpetual Motion is a history of the fool-hardiness of either half-learned, or totally ignorant persons.

— Henry Dircks, Perpetuum Mobile: Or, A History of the Search for Self-motive (1861)

Techniques

“	One day man will connect his apparatus to the very wheelwork of the universe [...] and the very forces that motivate the planets in their orbits and cause them to rotate will rotate his own machinery.	”
— Nikola Tesla

Some common ideas recur repeatedly in perpetual motion machine designs. Many ideas that continue to appear today were stated as early as 1670 by John Wilkins, Bishop of Chester and an official of the Royal Society. He outlined three potential sources of power for a perpetual motion machine, "Chymical [sic] Extractions", "Magnetical Virtues" and "the Natural Affection of Gravity".

The seemingly mysterious ability of magnets to influence motion at a distance without any apparent energy source has long appealed to inventors. One of the earliest examples of a magnetic motor was proposed by Wilkins and has been widely copied since: it consists of a ramp with a magnet at the top, which pulled a metal ball up the ramp. Near the magnet was a small hole that was supposed to allow the ball to drop under the ramp and return to the bottom, where a flap allowed it to return to the top again. The device simply could not work. Faced with this problem, more modern versions typically use a series of ramps and magnets, positioned so the ball is to be handed off from one magnet to another as it moves. The problem remains the same. 

Perpetuum Mobile of Villard de Honnecourt (about 1230).

 

The "Overbalanced Wheel".

Gravity also acts at a distance, without an apparent energy source, but to get energy out of a gravitational field (for instance, by dropping a heavy object, producing kinetic energy as it falls) one has to put energy in (for instance, by lifting the object up), and some energy is always dissipated in the process. A typical application of gravity in a perpetual motion machine is Bhaskara's wheel in the 12th century, whose key idea is itself a recurring theme, often called the overbalanced wheel: moving weights are attached to a wheel in such a way that they fall to a position further from the wheel's center for one half of the wheel's rotation, and closer to the center for the other half. Since weights further from the center apply a greater torque, it was thought that the wheel would rotate for ever. However, since the side with weights further from the center has fewer weights than the other side, at that moment, the torque is balanced and perpetual movement is not achieved. The moving weights may be hammers on pivoted arms, or rolling balls, or mercury in tubes; the principle is the same. 

Perpetual motion wheels from a drawing of Leonardo da Vinci.

 

Another theoretical machine involves a frictionless environment for motion. This involves the use of diamagnetic or electromagnetic levitation to float an object. This is done in a vacuum to eliminate air friction and friction from an axle. The levitated object is then free to rotate around its center of gravity without interference. However, this machine has no practical purpose because the rotated object cannot do any work as work requires the levitated object to cause motion in other objects, bringing friction into the problem. Furthermore, a perfect vacuum is an unattainable goal since both the container and the object itself would slowly vaporize, thereby degrading the vacuum.

To extract work from heat, thus producing a perpetual motion machine of the second kind, the most common approach (dating back at least to Maxwell's demon) is unidirectionality. Only molecules moving fast enough and in the right direction are allowed through the demon's trap door. In a Brownian ratchet, forces tending to turn the ratchet one way are able to do so while forces in the other direction are not. A diode in a heat bath allows through currents in one direction and not the other. These schemes typically fail in two ways: either maintaining the unidirectionality costs energy (requiring Maxwell's demon to perform more thermodynamic work to gauge the speed of the molecules than the amount of energy gained by the difference of temperature caused) or the unidirectionality is an illusion and occasional big violations make up for the frequent small non-violations (the Brownian ratchet will be subject to internal Brownian forces and therefore will sometimes turn the wrong way). 

The "Float Belt". The yellow blocks indicate floaters. It was thought that the floaters would rise through the liquid and turn the belt. However, pushing the floaters into the water at the bottom takes as much energy as the floating generates, and some energy is dissipated.

 

Buoyancy is another frequently misunderstood phenomenon. Some proposed perpetual-motion machines miss the fact that to push a volume of air down in a fluid takes the same work as to raise a corresponding volume of fluid up against gravity. These types of machines may involve two chambers with pistons, and a mechanism to squeeze the air out of the top chamber into the bottom one, which then becomes buoyant and floats to the top. The squeezing mechanism in these designs would not be able to do enough work to move the air down, or would leave no excess work available to be extracted.

Patents

Proposals for such inoperable machines have become so common that the United States Patent and Trademark Office (USPTO) has made an official policy of refusing to grant patents for perpetual motion machines without a working model. The USPTO Manual of Patent Examining Practice states:

With the exception of cases involving perpetual motion, a model is not ordinarily required by the Office to demonstrate the operability of a device. If operability of a device is questioned, the applicant must establish it to the satisfaction of the examiner, but he or she may choose his or her own way of so doing.

And, further, that:

A rejection [of a patent application] on the ground of lack of utility includes the more specific grounds of inoperativeness, involving perpetual motion. A rejection under 35 U.S.C. 101 for lack of utility should not be based on grounds that the invention is frivolous, fraudulent or against public policy.

The filing of a patent application is a clerical task, and the USPTO will not refuse filings for perpetual motion machines; the application will be filed and then most probably rejected by the patent examiner, after he has done a formal examination. Even if a patent is granted, it does not mean that the invention actually works, it just means that the examiner believes that it works, or was unable to figure out why it would not work.

The USPTO maintains a collection of Perpetual Motion Gimmicks. 

The United Kingdom Patent Office has a specific practice on perpetual motion; Section 4.05 of the UKPO Manual of Patent Practice states:

Processes or articles alleged to operate in a manner which is clearly contrary to well-established physical laws, such as perpetual motion machines, are regarded as not having industrial application.

Examples of decisions by the UK Patent Office to refuse patent applications for perpetual motion machines include:

• Decision BL O/044/06, John Frederick Willmott's application no. 0502841
• Decision BL O/150/06, Ezra Shimshi's application no. 0417271

The European Patent Classification (ECLA) has classes including patent applications on perpetual motion systems: ECLA classes "F03B17/04: Alleged perpetua mobilia ..." and "F03B17/00B: [... machines or engines] (with closed loop circulation or similar : ... Installations wherein the liquid circulates in a closed loop; Alleged perpetua mobilia of this or similar kind ...".

Apparent perpetual motion machines

As "perpetual motion" can exist only in isolated systems, and true isolated systems do not exist, there are not any real "perpetual motion" devices. However, there are concepts and technical drafts that propose "perpetual motion", but on closer analysis it is revealed that they actually "consume" some sort of natural resource or latent energy, such as the phase changes of water or other fluids or small natural temperature gradients, or simply cannot sustain indefinite operation. In general, extracting work from these devices is impossible.

Resource consuming

The "Capillary Bowl"

Some examples of such devices include:

• The drinking bird toy functions using small ambient temperature gradients and evaporation. It runs until all water is evaporated.
• A capillary action-based water pump functions using small ambient temperature gradients and vapour pressure differences. With the "Capillary Bowl", it was thought that the capillary action would keep the water flowing in the tube, but since the cohesion force that draws the liquid up the tube in the first place holds the droplet from releasing into the bowl, the flow is not perpetual.
• A Crookes radiometer consists of a partial vacuum glass container with a lightweight propeller moved by (light-induced) temperature gradients.
• Any device picking up minimal amounts of energy from the natural electromagnetic radiation around it, such as a solar powered motor.
• Any device powered by changes in air pressure, such as some clocks (Cox's timepiece, Beverly Clock). The motion leeches energy from moving air which in turn gained its energy from being acted on.
• The Atmos clock uses changes in the vapor pressure of ethyl chloride with temperature to wind the clock spring.
• A device powered by radioactive decay from an isotope with a relatively long half-life; such a device could plausibly operate for hundreds or thousands of years.
• The Oxford Electric Bell and Karpen Pile driven by dry pile batteries.

Low friction

• In flywheel energy storage, "modern flywheels can have a zero-load rundown time measurable in years".
• Once spun up, objects in the vacuum of space—stars, black holes, planets, moons, spin-stabilized satellites, etc.—dissipate energy very slowly, allowing them to spin for long periods. Tides on Earth are dissipating the gravitational energy of the Moon/Earth system at an average rate of about 3.75 terawatts.
• In certain quantum-mechanical systems (such as superfluidity and superconductivity), very low friction movement is possible. However, the motion stops when the system reaches an equilibrium state (e.g. all the liquid helium arrives at the same level.) Similarly, seemingly entropy-reversing effects like superfluids climbing the walls of containers operate by ordinary capillary action.

Thought experiments

In some cases a thought (or gedanken) experiment appears to suggest that perpetual motion may be possible through accepted and understood physical processes. However, in all cases, a flaw has been found when all of the relevant physics is considered. Examples include:

• Maxwell's demon: This was originally proposed to show that the Second Law of Thermodynamics applied in the statistical sense only, by postulating a "demon" that could select energetic molecules and extract their energy. Subsequent analysis (and experiment) have shown there is no way to physically implement such a system that does not result in an overall increase in entropy.
• Brownian ratchet: In this thought experiment, one imagines a paddle wheel connected to a ratchet. Brownian motion would cause surrounding gas molecules to strike the paddles, but the ratchet would only allow it to turn in one direction. A more thorough analysis showed that when a physical ratchet was considered at this molecular scale, Brownian motion would also affect the ratchet and cause it to randomly fail resulting in no net gain. Thus, the device would not violate the Laws of thermodynamics.
• Vacuum energy and zero-point energy: In order to explain effects such as virtual particles and the Casimir effect, many formulations of quantum physics include a background energy which pervades empty space, known as vacuum or zero-point energy. The ability to harness zero-point energy for useful work is considered pseudoscience by the scientific community at large. Inventors have proposed various methods for extracting useful work from zero-point energy, but none have been found to be viable, no claims for extraction of zero-point energy have ever been validated by the scientific community, and there is no evidence that zero-point energy can be used in violation of conservation of energy.

Patent troll

From Wikipedia, the free encyclopedia

In international law and business, patent trolling or patent hoarding is a categorical or pejorative term applied to a person or company that attempts to enforce patent rights against accused infringers far beyond the patent's actual value or contribution to the prior art, often through hardball legal tactics (frivolous litigation, vexatious litigation, strategic lawsuit against public participation (SLAPP), chilling effects, and the like). Patent trolls often do not manufacture products or supply services based upon the patents in question. However, some entities which do not practice their asserted patent may not be considered "patent trolls" when they license their patented technologies on reasonable terms in advance.

 

Other related concepts include patent holding company (PHC), patent assertion entity (PAE), and non-practicing entity (NPE), which may or may not be considered a "patent troll" depending on the position they are taking and the perception of that position by the public. While in most cases the entities termed "trolls" are operating within the bounds of the legal system, their aggressive tactics achieve outcomes contrary to the origins of the patent system as a legislated social contract to foster and protect innovation; the rapid rise of the modern information economy has put the global intellectual property system under more strain.

Beginning in 2011, a inter partes reviews (IPR) process in the United States allows executive branch agency rather than the courts to invalidate a patent—this was later affirmed by a Supreme Court decision in 2018. In 2015, 45% of all patent cases in the United States were filed in the Eastern District of Texas in Marshall, and 28% of all patents were filed before James Rodney Gilstrap, as this court was known for favoring plaintiffs and for its expertise in patent suits. However, in May 2017 the Supreme Court of the United States ruled in a unanimous decision in TC Heartland LLC v. Kraft Foods Group Brands LLC that patent litigation cases must be heard in the state in which the defendant is incorporated, shutting down this option for plaintiffs.

Patent trolling has been less of a problem in Europe than in the United States, because Europe has a loser pays costs regime. In contrast, the U.S. generally used the so-called American rule, providing that each party is responsible for paying its own attorney's fees, until the U.S. Supreme Court decided Octane Fitness, LLC v. ICON Health & Fitness, Inc. on April 29, 2014.

Etymology and definition

The term patent troll was used at least once in 1993 with a slightly different meaning, to describe countries that file aggressive patent lawsuits. The 1994 educational video, The Patents Video also used the term, depicting a green troll guarding a bridge and demanding fees. The origin of the term patent troll has also been variously attributed to Anne Gundelfinger, or Peter Detkin, both counsel for Intel, during the late 1990s.

Patent troll is currently a controversial term, susceptible to numerous definitions, none of which are considered satisfactory from the perspective of understanding how patent trolls should be treated in law. Definitions include a party that does one or more of the following:

• Purchases a patent, often from a bankrupt firm, and then sues another company by claiming that one of its products infringes on the purchased patent;
• Enforces patents against purported infringers without itself intending to manufacture the patented product or supply the patented service;
• Enforces patents but has no manufacturing or research base;
• Focuses its efforts solely on enforcing patent rights; or
• Asserts patent infringement claims against non-copiers or against a large industry that is composed of non-copiers.

The term "patent pirate" has been used to describe both patent trolling and acts of patent infringement. Related expressions are "non-practising entity" (NPE) (defined as "a patent owner who does not manufacture or use the patented invention, but rather than abandoning the right to exclude, an NPE seeks to enforce its right through the negotiation of licenses and litigation"), "patent assertion entity" (PAE), "non-manufacturing patentee", "patent shark", "patent marketer", "patent assertion company", and "patent dealer".

Confusion over use of the term patent troll is clear in research and media reporting. In 2014, Price Waterhouse Coopers published research into patent litigation including a study of non-practicing entities including individual inventors and non-profit organisations such as universities. In quoting that research, media outlets such as the Washington Post labelled all non-practicing entities as patent trolls.

Legal and regulatory history

According to RPX Corporation, a firm that helps reduce company patent-litigation risk by offering licenses to patents it owns in exchange for an agreement not to sue, patent trolls in 2012 filed more than 2,900 infringement lawsuits nationwide (nearly six times higher than the number in 2006).

In addressing the America Invents Act (AIA) passed by Congress in September 2011 reforming US patent law, U.S. President Barack Obama said in February 2013 that US "efforts at patent reform only went about halfway to where we need to go." The next indicated step was to pull together stakeholders and find consensus on "smarter patent laws."

On June 4, 2013, President Obama referenced patent trolls and directed the United States Patent and Trademark Office (USPTO) to take five new actions to help stem the surge in patent-infringement lawsuits tying up the court system. Saying "they don't actually produce anything themselves, they're just trying to essentially leverage and hijack somebody else's idea and see if they can extort some money out of them," the President ordered the USPTO to require companies to be more specific about exactly what their patent covers and how it is being infringed.

The Administration further stated the USPTO will tighten scrutiny of patent claims that appear overly broad, and will aim to curb patent-infringement lawsuits against consumers and small-business owners using off-the-shelf technology. The President asked Congress to enact legislation to more aggressively curb "abusive" lawsuits. David Kravets said "[t]he history ebooks will remember the 44th president for setting off a chain of reforms that made predatory patent lawsuits a virtual memory."

In the U.S. Congress, Senator Orrin Hatch (R-Utah) sponsored legislation in 2013 intended to reduce the incidence of patent trolling. The bill, called the Patent Litigation Integrity Act, would help judges make patent trolls pay for the cost of the lawsuits, especially if the trolls lost the lawsuits.

In February 2014, Apple filed two amicus briefs for cases pending in the U.S. Supreme Court, claiming to be the #1 target for patent trolls, having faced nearly 100 lawsuits in the preceding three years.

In November 2014, the U.S. Federal Trade Commission (FTC) settled its first consumer-protection lawsuit against a company, for using "deceptive sales claims and phony legal threats". The FTC found that defendant MPHJ had sent letters to more than 16,000 small to mid-size businesses threatening patent infringement lawsuits if the companies did not comply with its demand for licensing fees of $1,000 to $1,200 per employee, but never making preparations for such lawsuits. The 2014 settlement provided for a $16,000 fine per letter that MPHJ or its attorneys would send.

State responses in the United States

In May 2013, Vermont's Consumer Protection Act took effect. The Vermont law prohibits bad faith infringement threats, with bad faith indicated by: lack of specificity of the alleged infringement, settlement demands or damage claims that include excessive licensing fees, and unreasonably short deadlines for payment of demanded monies. Vermont's statute gives recipients of threat letters the right to counter-sue in state court, thus making it a less lucrative business model to send out large numbers of threat letters. As of August 2013, the Vermont legislation had not been tested in court as to violation of federal preemption, the legal principle that bars states from interfering in matters regulated or administrated by the federal government (such as aviation), or enforcement of federal law.

In August 2013, Nebraska's Attorney General sent warnings to a patent troll's law firm, asserting that to send frivolous licensing demands to Nebraska businesses may constitute unfair and deceptive business practices and violate Nebraska's unfair competition law.

In 2013, Minnesota's Attorney General obtained a settlement prohibiting MPHJ Technology Investments LLC from continuing its licensing campaign, Minnesota said to be the first state to obtain such a settlement.

In April 2014, the Wisconsin governor signed legislation that would make patent-trolling Wisconsin companies more difficult. The legislation imposes strict notification duties on the entity claiming infringement, and there are potentially strict penalties for non-compliance with the notification process.

In the 2014, legislative session, Idaho Lieutenant Governor Brad Little sponsored Senate Bill 1354, or the "Patent-troll" bill which protected companies from "bad faith assertions of patent infringement", in which a patent holder frequently harasses businesses for purportedly infringing on a patent in order to collect an extortionate licensing fee.

Causes

The cost of defending against a patent infringement suit, as of 2004, was typically $1 million or more before trial, and $2.5 million for a complete defense, even if successful. Because the costs and risks are high, defendants may settle even non-meritorious suits they consider frivolous for several hundred thousand dollars. The uncertainty and unpredictability of the outcome of jury trials in the United States also encourages settlement.

It has also been suggested that distortions in the patent market, such as those caused by the examination backlog, promote patent trolling.

If the patent office accepts claims that have been invented, published or even patented before, ignoring material prior art, then even existing technologies in use are subject to patent trolling. Reexamination to invalidate the patent based on prior art can be requested, but requests are typically made only after a lawsuit is filed or threatened (about 0.33% of patents in U.S. have re-examination is requested.) and often in conjunction with an infringement lawsuit. Only the patent holder will participate in this process, and the party requesting the reexamination has no right of appeal and is estopped from using the same evidence in any subsequent civil action; this risk keeps the popularity of reexamination low despite its lower cost. Furthermore, the most common outcome is not the validation or invalidation of the patent, but narrowing the scope of the claims.

There is also no obligation to defend an unused patent immediately, thus manufacturing companies may produce the patented product for years until the patent troll sues them. For example, the JPEG format, intended to be free of license fees, was subject to two patent attacks, one by Forgent Networks during 2002–2006 and another by Global Patent Holdings during 2007–2009. Both patents were eventually invalidated based on prior art, but before this, Forgent collected more than $100 million in license fees from 30 companies and sued 31 other companies

Effects

In 2011, United States business entities incurred $29 billion in direct costs because of patent trolls. Lawsuits brought by "patent assertion companies" made up 61% of all patent cases in 2012, according to the Santa Clara University School of Law. From 2009 through mid-2013, Apple Inc. was the defendant in 171 lawsuits brought by non-practicing entities (NPEs), followed by Hewlett-Packard (137), Samsung (133), AT&T (127), and Dell (122). Patent troll-instigated litigation, once mostly confined to large companies in patent-dependent industries such as pharmaceuticals, came to involve companies of all sizes in a wide variety of industries. In 2005, patent trolls sued 800 small firms (those with less than $100 million annual revenue), the number growing to nearly 2,900 such firms in 2011; the median defendant's annual revenue was $10.3 million. A July 2014 PricewaterhouseCoopers study concluded that non-practicing entities (NPEs) accounted for 67 percent of all patent lawsuits filed—up from 28 percent five years earlier—and though the median monetary award size has shrunk over time, the median number of awards to NPEs was three times higher than those of practicing companies.

A 2014 study from Harvard University, Harvard Business School and the University of Texas concluded that firms forced to pay patent trolls reduce R&D spending, averaging $211 million less than firms having won a lawsuit against a troll. That 2014 study also found that trolls tend to sue firms with fewer attorneys on staff, in effect encouraging firms to invest in legal representation at the expense of technology development. The 2014 study reported that trolls tend to opportunistically sue firms with more available cash, even if the firm's available cash was not earned in the technology that is the subject of the patent lawsuit, and targeting the firms long before a product begins turning a profit, thus disincentivizing investment in new technologies.

Emphasis became progressively focused on patents covering software rather than chemical or mechanical inventions, given the difficulty in defining the scope of software patent claims in comparison to the more easily defined specific compounds in chemical patents. A GAO study concluded that the proportion of patent lawsuits initiated by trolls hadn't changed significantly from 2007 through 2011, the GAO speculating that the raw numerical increase in both troll and non-troll instituted lawsuits may be due to the "inherently imprecise" language and a lack of common, standardized, scientific vocabulary in constantly evolving emerging technologies such as software. Software patents were described as "particularly prone" to abuse because software is "inherently conceptual", with research indicating that a software patent is four times as likely as a chemical patent to be involved in litigation, and a software "business method patent" is thirteen times more likely to be litigated.

On June 4, 2013, the National Economic Council and Council of Economic Advisers released a report entitled Patent Assertion and U.S. Innovation  that found significant harm to the economy from such entities and made recommendations to address them. The report further stated: "Specific policies should focus on fostering clearer patents with a high standard of novelty and non-obviousness, reducing disparity in the costs of litigation for patent owners and technology users, and increasing the adaptability of the innovation system to challenges posed by new technologies and new business models, would likely have a similar effect today."

A core criticism of patent trolls is that "they are in a position to negotiate licensing fees that are grossly out of alignment with their contribution to the alleged infringer's product or service", notwithstanding their non-practising status or the possible weakness of their patent claims. The risk of paying high prices for after-the-fact licensing of patents they were not aware of, and the costs for extra vigilance for competing patents that might have been issued, in turn increases the costs and risks of manufacturing. 

On the other hand, the ability to buy, sell and license patents is seen by some as generally productive. The Wall Street Journal argued that by creating a secondary market for patents, these activities make the ownership of patents more liquid, thereby creating incentives to innovate and patent. Patent Licensing Entities also argue that aggregating patents in the hands of specialized licensing companies facilitates access to technology by more efficiently organizing ownership of patent rights.

In an interview conducted in 2011, former U.S. federal judge Paul R. Michel regarded "the 'problem' [of non-practicing entities, the so-called "patent trolls"] to be greatly exaggerated." Although there are a number of problems with the U.S. patent system, i.e. "most NPE infringement suits are frivolous because the defendant plainly does not infringe or the patent is invalid", "patent infringement suits are very slow and expensive", and "NPEs may add value to the patents by buying them up when manufacturers decline to do so. Inventors may have benefited from the developing market in patent acquisition."

This view was supported in an article in 2014 that suggests that the pejorative term patent troll works in the benefit of large organisations who infringe patents and resent smaller inventors being represented by someone with the clout to take them on. The argument against the use of the term is that NPEs, in the main, return the majority of a settlement to the original inventor. Similarly, New York Times columnist Joe Nocera wrote that legislation on patent reforms considered by the United States Congress that are "allegedly aimed at trolls" often instead "effectively tilt the playing field even further towards big companies with large lobby budget".

Mechanics

Patent trolls operate much like any other company that is protecting and aggressively exploiting a patent portfolio. However, their focus is on obtaining additional money from existing uses, not from seeking out new applications for the technology. They monitor the market for possibly infringing technologies by watching popular products, news coverage and analysis. They also review published patent applications for signs that another company is developing infringing technology, possibly unaware of their own patents. They then develop a plan for how to proceed. They may start by suing a particularly vulnerable company that has much to lose, or little money to defend itself, hoping that an early victory or settlement will establish a precedent to encourage other peer companies to acquiesce to licenses. Alternately they may attack an entire industry at once, hoping to overwhelm it.

An individual case often begins with a perfunctory infringement complaint, or even a mere threat of suit, which is often enough to encourage settlement for the nuisance or "threat value" of the suit by purchasing a license to the patent. In the United States, patent suits previously could be filed in any United States District Court, allowing plaintiffs to "shop around" to find the court with the highest chances of success; in 2015, 45% of all patent cases were filed in the Eastern District of Texas in Marshall, as this court was known for favoring plaintiffs and for its expertise in patent suits. However, the Supreme Court of the United States ruled in a unanimous May 2017 decision in TC Heartland LLC v. Kraft Foods Group Brands LLC that patent litigation cases must be heard in the state which the defendant is incorporated, shutting down this option for plaintiffs.

The uncertainty and unpredictability of the outcome of jury trials also encourages settlement. If it wins, the plaintiff is entitled as damages an award of at least a "reasonable" royalty determined according to the norms of the field of the patented invention.

Patent trolls are at a disadvantage in at least two ways. First, patent owners who make and sell their invention are entitled to awards of lost profits. However, patent trolls, being non-manufacturers, typically do not qualify. Further, patent owners' rights to bar infringers from manufacture, use, or sale of technologies that infringe their patents has been curtailed in the 2006 court decision eBay v. MercExchange. Rather than automatically granting an injunction, the US Supreme Court stated that courts must apply a standard reasonableness test to determine if an injunction is warranted. Writing in Forbes about the impact of this case on patent trolls, writer Jessica Holzer concludes: "The high court's decision deals a blow to patent trolls, which are notorious for using the threat of permanent injunction to extort hefty fees in licensing negotiations as well as huge settlements from companies they have accused of infringing. Often, those settlements can be far greater than the value of the infringing technology: Recall the $612.5 million that Canada's Research in Motion forked over to patent-holding company NTP, Inc., to avoid the shutting down of its popular BlackBerry service." 

The non-manufacturing status of a patent troll has a strategic advantage, in that the target infringer cannot counter-sue for infringement. In litigation between businesses who make, use or sell patented technology, the defendant will often use its own patent portfolio as a basis to file a counterclaim for infringement. The counterclaim becomes an incentive for settlement, and in many industries, discourages patent infringement suits. Additionally, a patent suit carries with it the threat of an injunction or mutual injunction, which could shut down manufacturing or other business operations. If a patent owner does not make, use or sell technology, then the possibility of a counter-suit for infringement would not exist. For this reason, a patent troll is able to enforce patents against large companies which have substantial patent portfolios of their own. Furthermore, patent trolls may use shell companies.

Responses to patent trolls

Early Woodward light bulb patent purchased by Thomas Edison to preclude challenges

 

Patent trolls are neither using nor marketing the inventions covered by their patents, but instead plan to make money by threatening or filing lawsuits. Using the justice system to make money gives patent trolls a financial advantage because patent troll plaintiffs are typically immune from defense strategies large business employ against legitimate smaller patent plaintiffs (e.g., litigation costs are significantly higher for the defendant or infringer than for a purported damaged plaintiff who has a "no recovery, no fee" contingency-fee lawyer; until recently trolls had an almost-unrestricted ability to choose plaintiff-friendly forums, frequently the Eastern District of Texas).

Strategies used by companies to protect themselves from legitimate competition are ineffective against patent trolls. Defensive techniques include: monitoring patent activities of competitors to avoid infringing patents (since patent trolls are not competitors, productive companies usually have no way to find out about the troll or its patents until after significant investments have been made to produce and market a product); going on the offensive with counterclaims that accuse the patent plaintiff of infringing patents owned by the defendant (the mutual threat often leads the parties to arrive at a mutually beneficial cross-licensing arrangement); or a "scorched earth" defense designed to drive up litigation costs (which is equally ineffective because patent trolls plan for and have the finances to fully litigate a case; in fact, some are able to draw on hedge funds and institutional investors to finance their patent cases). Patent "pooling" arrangements where many companies collaborate to bring their patented knowledge together to create new products are also inapplicable to patent trolls because they do not produce products. It is possible to perform offensive techniques to ward off patent trolls with the open source release of concepts preemptively to prevent patent trolls from establishing intellectual property on building block technology. A Google-led initiative, LOT Network, was formed in 2014 to combat PAEs by cross-licensing patents that fall into the hands of enforcers. Another Google-affiliated organization, Unified Patents, seeks to reduce the number and effectiveness of patent trolls by filing inter partes reviews (IPR) on patents owned by trolls.

Large companies who use patent litigation as a competitive tool risk losing their patent rights if a defendant claims patent misuse. However, the misuse defense is difficult against a patent troll because antitrust violations typically involved require significant market power on the part of the patent holder. Nevertheless, manufacturers do use various tactics to limit their exposure to patent trolls. Most have broader uses as well for defending their technologies against competitors. These include:

• Design arounds can be a defense against patent trolls. The amount of license fee that a patent troll can demand is limited by the alternative of the cost of designing around the troll's patent(s).
• Patent watch. Companies routinely monitor new patents and patent applications, most of which are published, to determine if any are relevant to their business activities.
• Clearance search. A standard practice is to perform a clearance search for patents or pending patent applications that cover important features of a potential product, before its initial development or commercial introduction. For example, a search by Thomas Edison uncovered a prior patent by two Canadian inventors, Henry Woodward and Mathew Evans, for carbon filament in a non-oxidizing environment, (U.S. Patent 181,613), the type of light bulb Edison wanted to develop. Edison bought the patent for US$5,000 ($129,810 in present-day terms) to eliminate the possibility of a later challenge by Woodward and Evans.
• Opposition proceeding. In Europe (under the European Patent Convention), any person may initiate proceedings to oppose a European patent. There is a more limited process in the United States, known as a reexamination. As an example, Research In Motion, filed reexaminations against broad NTP, Inc. patents related to BlackBerry technology.
• Litigation. Whereas some companies acquiesce to a troll's demands, others go on the offensive by challenging the patents themselves, for example by finding prior art that calls into question their patentability. They may also broadly challenge whether the technology in question is infringing, or attempt to show patent misuse. If successful, such a defense not only wins the case at hand but destroys the patent troll's underlying ability to sue. Knowing this, the patent troll may back down or lessen its demands.
• Early settlement. An early settlement is often far less expensive than litigation costs and later settlement values.
• Patent infringement insurance. Insurance is available to help protect companies from inadvertently infringing a third party's patents.
• Defensive patent aggregation, the practice of purchasing patents or patent rights from patent holders so they don't end up in the hands of an individual or enterprise that can assert them. Increasingly aggregations are focused on purchasing patents and patent rights off the open market, or out of NPE assertion and litigation, which directly impact the businesses of the aggregation's members. The aggregator then provides members a broad license to everything it owns in exchange for an annual fixed-fee. Defensive aggregators purchased 15% of all brokered patent sales in 2014.
• Action for unjustified threats. In Australia, the UK and other countries, a legal action may be brought against anyone who makes unjustifiable threats to begin patent infringement proceedings. Concerning the Australian threats provisions, Lisa L. Mueller says that "if a patent troll is found to have engaged in a threat, the only way it could defend itself against an injunction or an award of monetary damages would be to commence patent infringement proceedings and have the court find that infringement occurred."
• Bounties. Monetary bounties have been offered to the public to find prior art or provide other information, such as arguments showing the obviousness or material defects in a patent application, that would invalidate a patent troll's patents. This tactic has been used not only against the patent in question but also against other patents held by the patent troll in order to undermine its business model.