Patent litigation can be polarizing.  If you’re a defendant accused of patent infringement, you see the patent owner as an opportunistic “patent troll.”   On the other hand, if you’re a patent owner and believe someone is infringing your patent rights, you see that party as a “patent pirate,” blatantly stealing your rights with no justification.  Well…sometimes these pejoratives may fit, but at other times – indeed, oftentimes — there is simply a legitimate difference in opinion about whether a right is being violated or the value of that right.  In other words, there is a good faith dispute between competing business interests.  Thinking of the adversary as a “pirate” or a “troll” may be an easy way of focusing your anger at the situation, but may ultimately be counterproductive.

At a young age we learn “sticks and stones may break our bones, but words can never hurt me.”  This is an oversimplification, of course, but fits in this case:  calling a patent owner a “troll” or calling an alleged infringer a “pirate” simply does not hurt them or change their behavior at all.  Engaging in such labeling, however, may change your behavior in subtle ways that may cloud your objectivity.  After all, who wants to resolve a dispute with a patent owner they view as a “troll” or a defendant they see as a “pirate”?

The ability to objectively view a case from the other side’s perspective is an important tool in developing effective litigation and trial strategy and, of course, settlement strategy.  The more we demonize an adversary, the harder this becomes.  You don’t need to empathize with your adversary, but when it comes to case evaluation, you will be well-served by keeping “pirates” and “trolls” in the realm of children’s books, being objective, and clearly seeing the case through the eyes of your opponent.