Patent Privateers: Private Enforcement's Historical Survivors
75 Pages Posted: 17 Aug 2013 Last revised: 9 Sep 2013
Date Written: 2013
Commentators have long debated the relative merits of private and public law enforcement. Environmental-law citizen suits, securities-law class actions, and qui tam litigation have been focal points for controversy about how and when to use private-enforcement rights to help implement government policy. U.S. patent law’s recently abrogated qui tam provision for false marking has highlighted potential pathologies of private enforcement. Patent law also raises questions of private enforcement through debates over the extent to which third parties, including consumers, should have access to administrative or court proceedings to challenge patent rights. Most fundamentally, patents themselves provide private rights to sue — i.e., private-enforcement rights — that government grants to advance a public interest in promoting innovation. Concerns about so-called “patent trolls” or other litigation-focused patentees emphasize the fact that, like another form of “private enforcer” — historical privateers — patentees are private parties possessing legal authority to raid others’ commerce for the supposed greater good. Thus, in certain respects, viewing patentees as privateers can provide a more useful metaphor than common analogies between patentees and owners of tangible property. Privateers bearing letters of marque and reprisal could, of course, produce public benefits, particularly for governments relatively short on cash. But privateering could also lead to abuse or other behavior not perfectly in line with overall social interests. Analogy with past and present restrictions on citizen suits, qui tam suits, and privateers themselves sheds light on patent law’s historical evolution and suggests various forms that restriction or regulation of “patent privateering” might take.
Keywords: patents, private enforcement, privateering, qui tam, citizen suits, private attorneys general
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