Uneasy Times For Patent Trolls?

There is some evidence to suggest that we have reason to give thanks this season for the downward slide of the phenomenon of the non–practicing entity (NPE) a/k/a patent assertion entity (PAE) a/k/a patent troll. By any name, businesses that acquire patents for the purpose licensing and litigation are in the news, and not for recent successes.

The Recorder has published a lengthy piece on the “bumpy ride” investors take when they invest in publicly traded NPEs. The article, available here with registration, details the difficulty patent monetization entities (another moniker for these firms) have in maintaining value when their business model is based on the winner–take–all world of litigation in which today’s trial court victory can turn into tomorrow’s Federal Circuit reversal.

While over at The Atlantic, James Bessen of Boston University Law School writes about the ways in which the Supreme Court has been trimming the sails of the patent troll business model by making it easier for successful defendants to obtain attorneys’ fees, recalibrating the standard for patent indefiniteness, and setting out a two–part test for determining whether a patent claims patent–eligible subject matter that can be applied early in litigation before the parties and the court have sunk significant amounts of time and money into a lawsuit. Bessen notes that observers disagree over whether judicial action is sufficient to curb patent trolling, or whether additional congressional action will be required. But the direction of the trend is encouraging.