"Troll" Check? a Proposal for Administrative Review of Patent Litigation

By Cohen, Lauren; Golden, John M. et al. | Boston University Law Review, October 1, 2017 | Go to article overview

"Troll" Check? a Proposal for Administrative Review of Patent Litigation


Cohen, Lauren, Golden, John M., Gurun, Umit G., Kominers, Scott Duke, Boston University Law Review


(ProQuest: ... denotes formulae omitted.)

INTRODUCTION

Patent litigation reform is coming. Just as in the lead up to the 2011 America Invents Act ("AIA"),1 the United States Congress has entertained a host of patent reform bills over a series of years.2 Many have focused on patent litigation.3 The House of Representatives passed one of these litigation reform bills by a 325-91 vote in 2013,4 and supermajorities of the House and Senate Judiciary Committees approved reform bills in 2015.5 Policymakers have promised a renewed push for reform in 2017.6 Meanwhile, outside pressure for reform has come not only from the usual suspects among industry stakeholders7 but also from the popular press. In December 2013, the New York Times editorial board cheered congressional consideration of "sound proposals to restrict abusive patent litigation."8 In August 2015, the Economist made patent reform its cover story9 and came close to advocating abolition.10

Reform proposals have tended toward the dramatic. Some proposals have threatened a revolution in patent litigation-for example, by proposing general adoption of regular attorney fee shifting along a European "loser pays" model11 as opposed to the typical U.S. practice of shifting fees only rarely.12 Other proposals have focused on disempowering so-called "patent trolls"13-a disparaging moniker for patent-assertion entities ("PAEs") that specialize in the ownership, licensing, and enforcement of patent rights.14 Although the reform bills endorsed by the House and Senate Judiciary Committees in 2015 were generally more modest than their predecessors, they were still draconian by the usual standards of U.S. litigation reform.15

These reform efforts reflect concern that patent assertion activity is undermining patent law's purpose to promote technological progress specifically and social welfare more generally.16 A high overall caseload, high litigation costs, and rampant forum shopping feed these concerns. Even after a drop in district court filings in 2016, patent-suit filings are proceeding at about double the rate of the year 2000.17 Moreover, these suits are not cheap. Highstakes patent litigation tends to cost each side millions of dollars in attorney fees, and even litigation in which less than $1 million is at stake tends to cost each side several hundred thousand dollars.18 Further, the concentration of new suits in just two of the nation's ninety-four federal judicial districts,19 the Eastern District of Texas and the District of Delaware, has become astounding.20 According to a representative tally, in each year from 2012 through 2016, as well as in the first several months of 2017, over 40% of all new patent suits have been filed in these two districts.21 A May 2017 decision by the Supreme Court on patent venue22 will most likely shuffle the deck of suit locations but appears unlikely to fully address concerns with forum shopping. In the immediate aftermath of the decision, filings in the Eastern District of Texas predictably decreased, but filings in the District of Delaware (also predictably23) increased, with the result being that the cumulative percentage of filings in the two districts remained at about 40% of the total.24

In recent years, multiple tweaks to patent law have responded to concerns about patent assertion and litigation. Courts have taken a more restrictive approach to granting injunctions against adjudged infringers, thereby curtailing the ability of patent holders, particularly PAEs, to extract exorbitant licensing fees by threatening to shut down a factory or line of business.25 Courts have also tightened the standards for awarding reasonable royalty damages26 and have made the shifting of attorney fees more likely in light of meritless positions in litigation.27 Other court decisions have strengthened patentability requirements of subject-matter eligibility and nonobviousness, thereby making many suits more likely to fail in response to a motion for dismissal or summary judgment. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

"Troll" Check? a Proposal for Administrative Review of Patent Litigation
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.