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Are Patent Trolls 'Opportunistic'?

15 Pages Posted: 8 Nov 2014 Last revised: 6 Nov 2016

Ted M. Sichelman

University of San Diego School of Law

Date Written: November 6, 2014

Abstract

A recent and widely received study by Lauren Cohen, Umit G. Gurun, and Scott Duke Kominers finds that non-practicing entities (NPEs) — pejoratively known as “patent trolls” — are “opportunistic” because they target defendants that (1) are cash-rich (particularly compared to practicing entity patentees), (2) operate in industries that “have nothing to do with the patent” in suit, (3) are staffed by small legal teams, and (4) are busy with numerous non-IP cases. Additionally, the authors conclude that defendants that lose in patent litigation with NPEs on average have marked declines in subsequent R & D expenditures, on the order of $200 million per year. On this basis, the authors suggest “the marginal policy response should be to more carefully limit the power of NPEs.” Here, I critique in detail the August 2014 version of this study. (Given the authors' ongoing revisions to their study, I plan to revise the critique following the study's final publication.) I conclude that although the authors’ project is admirable in attempting to comprehensively examine the litigation behavior of NPEs, their dataset is incomplete and unrepresentative, their theoretical model is flawed, and their empirical models are unsound. As such, neither their findings nor policy prescriptions are justified.

Keywords: non-practicing entity, NPE, patent troll, patent litigation, innovation

JEL Classification: D2, K1, O31

Suggested Citation

Sichelman, Ted M., Are Patent Trolls 'Opportunistic'? (November 6, 2014). San Diego Legal Studies Paper No. 14-175. Available at SSRN: https://ssrn.com/abstract=2520125 or http://dx.doi.org/10.2139/ssrn.2520125

Ted M. Sichelman (Contact Author)

University of San Diego School of Law ( email )

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HOME PAGE: http://https://www.sandiego.edu/law/faculty/profiles/bio.php?ID=795

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