Patent Privateers: Private Enforcement's Historical Survivors

By Golden, John M. | Harvard Journal of Law & Technology, Spring 2013 | Go to article overview

Patent Privateers: Private Enforcement's Historical Survivors

Golden, John M., Harvard Journal of Law & Technology


Private-enforcement analogs for patent law are not limited to pre-Westphalian cousins such as privateering and qui tam. The modern administrative state has given rise to its own distinctive forms of private enforcement--most notably through provisions for citizens, consumers, and individual investors to enforce regulatory statutes, (278) often with the device of a class action as a procedural aid. (279) Antitrust suits brought by private plaintiffs took off in the wake of World War II. (280) Private Rule 10b-5 suits to enforce the securities laws have flourished more recently, particularly after the Supreme Court's recognition in 1988 of a "'fraud-on-the-market' theory" that significantly eased satisfaction of plaintiffs' burdens of proof. (281) In large part because of congressional enactment of various statutes authorizing citizen suits to enforce environmental laws, (282) such suits also proliferated during the 1980s, (283) a decade that perhaps not so coincidentally witnessed congressional actions to revive false-claims qui tam (284) and to reinvigorate U.S. patent law. (285) Moreover, growth in some forms of private enforcement has continued in the twenty-first century: in the wake of a financial crisis that triggered concerns that public regulators had been too lax, (286) Congress enacted whistleblower provisions that not only protected individuals who report securities-law violations but also provided positive incentives for such reporting in the form of ten to thirty percent of monetary penalties over $1 million. (287) Over a longer span of decades, state tort law, as applied through private citizens' suits, has emerged as a significant way to regulate product safety. (288)

As we have already seen to be a recurrent historical pattern, (289) much of this government-backed growth in private enforcement has ultimately led to later government-embraced backlash. Some of the backlash has come in the form of successful, generally legislative, efforts at state-based tort reform. (290) At the national level, the courts, not Congress, have commonly been the primary reform agents. Courts have played this role in part by invoking federal standing requirements as a constitutional trump to congressional efforts to authorize citizen suits. (291) The effective tightening of access to the courts through requirements such as standing has also proceeded on non-constitutional and even substantive grounds. In antitrust and securities contexts, the Supreme Court has interpreted various laws in ways that generate procedural and substantive hurdles to private enforcement. (292)

Efforts to promote or resist modern private-enforcement pendulum swings have stoked a rich literature chronicling citizen suits' pros and cons. After the discussions of privateering and qui tam litigation in Parts III and IV, many of these should sound familiar. According to academic commentators, private enforcement can improve on public enforcement in the following ways: (1) enabling private victims to seek compensation for harm; (293) (2) increasing deterrence of misbehavior and encouraging cooperation with public authorities; (294) (3) correcting for public underenforcement resulting from error, ineffectiveness, budget constraints, "capture," distraction by other priorities, inertia, apathy, or lethargy; (295) (4) promoting greater efficiency by harnessing private parties' better information or better enforcement capacities; (296) (5) exploiting private parties' capacity for innovation by providing incentives for them to develop new approaches to information gathering and enforcement; (297) (6) promoting individual autonomy by delegating enforcement responsibility to citizens; (298) and (7) checking government power, particularly that of self-interested or "captured" public enforcement officials. (299) Commentators have also noted the following potential drawbacks: (1) a tendency toward over-enforcement of "overbroad liability rule[s]" that a public official acting in the public interest would enforce more selectively; (300) (2) inflexibility of enforcement style; (301) (3) inefficient disruption of more cooperative approaches to regulation; (302) (4) collusive settlements that undercut the public interest; (303) (5) greater judicial error or inconsistency if a centralized, expert agency is not involved in enforcement; (304) (6) lack of democratic accountability for decisions to enforce the law; (305) and (7) underenforcement where private incentives and capacities to enforce are inadequate. …

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