Patent Litigation Reform & Non-practicing Entities: Solutions in Search of a Litigation Problem?

Kelli Larson, “Patent Litigation Reform & Non-practicing Entities: Solutions in Search of a Litigation Problem?”

Patent litigation initiated by so called non-practicing entities (NPEs) or patent trolls, individuals or entities that build business models solely around the procurement and enforcement of patents to generate revenues, has seemed to cause a wave of eruption across the American intellectual property law, business and political world. This essay provides an overview of the most recent federal legislative reforms that have been considered in light of the NPE patent litigation reform debate and assesses their status beginning with the AIA reform leading to the proposed Innovation Act. The Innovation Act is the main focus of assessment in light of its comprehensiveness including to a greater extent several provisions of previous proposed patent reforms intended to address an alleged NPE patent litigation problem. The essay concludes that Congress should take caution in trying to curb alleged patent abuses supposedly caused by NPEs by passing seemingly broad, unnecessary legislation of the Innovation Act before fully exploring and examining any implications resulting from the recently passed AIA patent reform, and before key Court decisions affecting patent enforcement are better understood. Pausing to reflect on the potential wider implications the Innovation Act may impose upon all patent owners operating in the patent ecosystem, not only for NPEs, may help Congress to reconsider reform that further weakens an already weakened patent enforcement landscape. The implications of the Innovation Act, if passed, may ultimately lead patent owners to explore other jurisdictions to enforce patents, namely Europe and parts of Asia where the strengthening of patent enforcement is taking place.