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This Article describes how the original understanding of properly granted patents, from Renaissance Italy to the Patent Act of 1836, generally required tangible proof of the thing to be patented's immediate commercializability and its benefits to society at large, along with ready access to courts or other means to challenge improperly-granted patents (under ordinary standards of proof), as such improperly-granted patents were understood to constitute unjust monopolies that deterred, rather than facilitated, desired innovation. That original understanding is then contrasted throughout to the patent litigation system as it exists in America today in which challengers of improperlygranted patents are effectively denied access to court, while "patent trolls" can come to own vaguely-worded or overly-broad patents that should never have been granted and, without ever producing anything themselves, assert those patents in court under a "presumption of validity" to extort resources from productive enterprises that, unlike the trolls, are making products people want. The situation now--in which the original understanding of the purpose of the patent laws is so diametrically opposed to patent law's operation today--invites reform by supporters of the patent law's original design. [ABSTRACT FROM AUTHOR]

The five years since Alice Corp. v. CLS Bank International, 573 U.S. 208 (2014) have witnessed an explosion in patentable subject matter decisions ‐‐ and in political controversy over the doctrine. To its critics, Alice renders important inventions in medical diagnostics, biotechnology, and information technology unpatenable and therefore discouraging investment in critical market sector innovation. To its defenders, Alice offers a reliable, quick, and cheap way to invalidate weak patents owned by patent trolls, reducing patent holdup and protecting innovators. In response to these debates, we explore how the courts actually use Alice. We construct a unique dataset of every district court and federal circuit decision on patentable subject matter from July 2014 through June 2019 and categorize the patent plaintiffs in each case using the Stanford NPE Litigation Database. Once in court, patentable subject matter challenges are far more common in software/IT cases, and biotech/life science innovations are more likely to survive. Surprisingly, the entities most likely to lose their patents are not patent trolls but individual inventors and inventor‐started companies. Our findings have important implications for current legislative and judicial disputes over patent reform as some of the patent owners most impacted may be overlooked. [ABSTRACT FROM AUTHOR]

The patent system is designed to promote innovation and supply a blueprint for innovative minds to improve upon, but the behavior of some patent owners is contrary to these principles. Non-practicing entities obtain patent rights, and rather than produce the product claimed in the patent, they assert their exclusionary rights broadly and aggressively against businesses producing similar products in order to induce settlement or licensing payments. These assertions account for a significant percentage of infringement claims and threaten a potentially innocent business with expensive litigation. The actions of these entities have a substantial effect on the patent system and have been the motivation behind reform and recent Supreme Court decisions. Each of the three branches of government has significant influence over the patent system, and each has the potential to promote change to reduce the impact of non-practicing entities on the United States patent system and on the United States economy. [ABSTRACT FROM AUTHOR]

Proponents of legislative patent reform argue that the current patent system perversely impedes true innovation in the name of protecting a vast web of patented inventions, the majority of which are never even commercialized for the benefit of the public. Opponents of such legislation argue that comprehensive, prospective patent reform legislation would harm the incentive to innovate more than it would curb the vexatious practices of non-practicing entities. But while the "Innovation Act" wallows in Congress, there is a common law tool to protect innovation from the patent thicket lying right under our noses: the reverse doctrine of equivalents. Properly applied, this judge-made doctrine can be used to excuse infringement on a case-by-case basis if the court determines that the accused product is substantially superior to the patented invention, despite proof of literal infringement. Unfortunately, the reverse doctrine is disfavored by the Court of Appeals for the Federal Circuit and therefore rarely applied. It was not always so. This Article is the first comprehensive study of published opinions applying the reverse doctrine of equivalents to excuse infringement between 1898, when the Supreme Court established the doctrine, and the 1982 creation of the Federal Circuit. This "lost precedent" reveals a flexible doctrine that takes into account the technological and commercial superiority of the accused product to any embodiment of the patented invention made by the patent-holder. An invigorated reverse doctrine of equivalents could therefore serve to protect true innovations from uncommercialized patents on a case-by-case basis, without the potential harm to the innovation incentive that prospective patent legislation might cause. [ABSTRACT FROM AUTHOR]

The article discusses the anti-patent trolling law passed by Vermont for the regulation of patent trolls in May 2013. Topics discussed include the U.S Leahy-Smith America Invents Act and patent reform that encouraged the development of patent rights and discouraged patent-infringement claims, the attempts made by the anti-patent trolling law to prevent patent holders from extortion by PAEs, and a brief history of the development of U.S. patent law.

Everyone hates patent trolls--those companies that "hijack somebody else's idea" and use the patents to "extort some money" from companies that actually make things. But, despite the rhetoric, not all patent trolls are created equal. This Article is the first to focus on one type of patent troll-- the formerly manufacturing entity. These patent trolls used to make or do something in commerce, but now derive all or a significant portion of their income through licensing their intellectual property. Using case study analysis, this Article demonstrates that formerly manufacturing entities do not impose the harms associated with patent trolls more broadly and, in fact, provide unique benefits for commercialization of new technologies. Specifically, formerly manufacturing entities do not "sneak up" on manufacturing companies, waiting for them to invest extensively in a technology before seeking a license. Rather, the technology and the patents are already out in the open, having been practiced by the patent troll. Further, because formerly manufacturing entities have already worked to commercialize the technology, they are in a much better position to assess its value, as well as the costs and risks associated with bringing it to market. We should recognize the benefits formerly manufacturing entities add to commercialization and, in the larger scheme, ensure that potential patent reform measures and judicial solutions to the patent troll problem are carefully drawn so as not to do more harm than good. [ABSTRACT FROM AUTHOR]

Over the past few years, a growing number of critics have complained that nonpracticing "patent trolls" threaten the American economy. These entities and their patent monetization practices have begun to generate inquiries from sources both scholarly and political. This article sets the stage for the nascent antitrust inquiry into patent trolls by reviewing the history of the patent-antitrust interface, showing the relationship between these two bodies of law and broader economic thought, and demonstrating the ways in which the--generally positive--recalibration of their interface in recent decades has created many of our current challenges. In particular, it focuses on the creation of our contemporary system of very strong patent rights beginning in the early 1980s and on the ways in which these rights have proven to be so strong that they may be invite anticompetitive abuse. [ABSTRACT FROM AUTHOR]

The article discusses assertion of patent through empirical analysis of actual infringement awards. Topics include the cases involving patent assertion entities (PAEs), particular assumptions regarding patent assertion, and the patent troll debate. Also mentioned some reform proposals that have been introduced.

The article discusses the Patent Abuse Reduction Act (PARA), one of the U.S. Congress attempts to curb the non-practicing entities (NPEs) abuse of the patent litigation process. It provides a background and a brief history of patent trolls, a term coined Peter Detkin as somebody who tries to make money off a patent. It offers a brief introduction to patent litigation and the procedures that would be affected by the PARA. It also explains why PARA should not be enacted.

Is it true that non-practicing entities (NPEs) are primarily a U.S. phenomenon? Over time, several definitions of NPEs have been presented. They range from research institutions that hold patent portfolios for their inventions but do not develop and commercialize any products, to IP asset management firms whose exclusive business is asserting patent claims to collect significant fees from companies operating in certain industries. The latter are also referred to as "patent trolls" and have been the subject of significant debate as to their role in the innovative process in different fields. NPEs are a relatively new phenomenon. Studies have shown that their activity has only become prominent in the United States during the last decade. And these studies have suggested that NPEs are not nearly as active in other countries, namely European countries. Nevertheless, no prior research has attempted to quantify the extent of the international NPE problem nor find possible explanations for the difference. This article investigates whether NPEs are indeed less active in Europe. Interestingly, the findings indicate that NPEs are present in Europe, but their operations there are minimal compared to their operations in the United States. This Article discusses possible explanations for this finding, including a comparative analysis of key differences between European and U.S. industries, remedy systems, and judicial cultures. This Article demonstrates that NPE activity in Europe is more depressed than in the United States because the affected industries- electronics, machinery and computer equipment, software and communication-are smaller in Europe than on the other side of the Atlantic Ocean. It also shows that NPEs operate in Europe despite the presence of certain features of local legal systems--such as fee-shifting-- that advocates of patent reform have recommended for adoption to control NPE activity in the United States. Consequently, this Article questions the supposed effects of those proposed reforms. Finally, this Article cautions against reforming the current U.S. patent system to make it more similar to European ones, as the European industries targeted by NPEs are less prosperous than their U.S. equivalents. The impact of these proposed reforms on the activities of practicing entities has not yet been adequately questioned. Even the question of whether NPE activity is in fact harming innovation has not been conclusively answered. Thus, much more investigation is necessary in this field before it would be wise to reform the patent system. [ABSTRACT FROM AUTHOR]

This Article is adapted from a speech I gave at the Patent Trolls and Patent Reform conference at Stanford Law School on March 21, 2014. [ABSTRACT FROM AUTHOR]

Patent trolls are increasingly blamed for the growing costs of patent litigation and seemingly excessive damages awards and patent royalties. There is much to support these allegations. Trolls now account for a majority of all patent assertions, win both larger judgments and larger settlements than do firms that practice patents, and do so despite complaints and some evidence that they assert weak patents. Nonetheless, we think the focus on trolls obscures more complex and fundamental problems with the patent system. There are at least three different troll business models that have varying effects on the patent system. Based on our review of the economics of patent assertions, we find that patent assertions by practicing entities can create problems that, while sometimes different from, are at least as costly as those created by trolls. Many of the problems associated with trolls are in fact problems that stem from the disaggregation of complementary patents into multiple hands. Our review takes us beyond labels and the search for "bad actors" and leads us to focus instead on aspects of the patent system that give rise to the problems, and on changes in patent law that will ameliorate them. These changes include updating standards for issuing patents and patent remedies, implementing measures to reduce abusive patent litigation, and heightened legal scrutiny of disaggregation of patent portfolios. We conclude that trolls are a symptom of larger flaws in the patent system and that those who have focused on trolls have, in effect, been missing the forest for the trolls. [ABSTRACT FROM AUTHOR]

The article focuses on a plan by the U.S. government to implement changes to its patent laws in a bid to address patent trolls. Information on the business model of patent trolls is provided. According to a report from the U.S. Executive Office of the President, both innovation and economic growth are adversely affected by patent trolls. The report also notes that software and technology patents are susceptible to attack from trolls.