Legislative Responses to Patent Assertion Entities

35 Pages Posted: 11 Apr 2015 Last revised: 16 Jan 2016

See all articles by David O. Taylor

David O. Taylor

Southern Methodist University - Dedman School of Law

Date Written: February 18, 2015

Abstract

While the existence of patent assertion entities is not new, in recent years they have proliferated, spawning debate concerning their impact on the patent system and, more broadly, on technological innovation. Despite the fear that they instill in their targets — or perhaps because of it — patent assertion entities arguably serve a beneficial purpose in the patent system. Theoretically they should be able to help individual inventors and small businesses, in particular, obtain a return on their investment in research and development. To the extent patent assertion entities assert patent claims that should be held invalid, not infringed, or unenforceable; obtain unreasonable judgments or settlements; or fail to return a substantial portion of settlements and judgments to inventors, however, patent assertion entities highlight problems with the patent system. This Article thus contributes to the ongoing debate concerning patent assertion entities, first, by identifying three primary problems with the patent system that some patent assertion entities exploit: (1) poor patent quality, (2) problems with patent litigation, and (3) various asymmetries. Then, this Article evaluates the current state of affairs regarding patent reform legislation and, in a largely descriptive sense, considers the extent to which this legislation — some enacted, some pending — addresses these three primary problems. Finally and more broadly, given the patent reform legislation already enacted and the ways in which it has addressed these three primary problems, this Article calls for consideration of whether legislative reform rather than judicial or agency reform is the best avenue to address remaining problems with the patent system.

Keywords: patents, legislation, America Invents Act, Innovation Act, patent assertion entities, non-practicing entities

Suggested Citation

Taylor, David O., Legislative Responses to Patent Assertion Entities (February 18, 2015). 23 Texas Intellectual Property Law Journal 313; SMU Dedman School of Law Legal Studies Research Paper No. 208. Available at SSRN: https://ssrn.com/abstract=2587319

David O. Taylor (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

HOME PAGE: http://www.law.smu.edu/Faculty/Full-Time-Faculty/Taylor.aspx

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