Troll Troubles

Lisa Larrimore Ouellette, who blogs at Written Description, has written a guest post for Patently O on a panel she recently chaired at the Yale Law School on “Patent Assertion Entities: Promoting or Stifling Innovation?” A panel of academics, in–house patent counsel, and Patent Office counsel appear to have focused their attention not on bad actors (patent trolls), but bad acts (the assertion of bad patents). As their views are described by Ouellette, none of the panelists seemed to believe that patent assertion by entities created for no other purpose was the core problem with patent litigation. Rather, the problem as they saw it is the assertion of bad patents, no matter by whom. Identifying bad patents is empirically hard and culling them through court decisions appears to be impractical. The fractured Federal Circuit’s opinions in CLS Bank v. Alice confirm this last point.

While we welcome the news of academic inquiry into the causes and consequences of patent trolling, we can’t help but wonder whether something is missing from this discussion with its focus on improving patent quality. There is a growing body of empirical evidence that patent troll litigation is on the rise,now exceeding 50% of all cases filed, and that patent trolls are increasingly suing non–technical companies (like retailers) under technical patents (relating to their websites, for example). The pattern of increased assertion against those who use, not produce, accused products or instrumentalities may suggest a class of plaintiffs who are simply indifferent to the quality of their patents, however measured. And that is quite a different kettle of fish.

Posted by David Swetnam-Burland