'Troll' Check? A Proposal for Administrative Review of Patent Litigation

68 Pages Posted: 15 Nov 2017 Last revised: 20 Dec 2017

See all articles by Lauren Cohen

Lauren Cohen

Harvard Business School; National Bureau of Economic Research (NBER)

John M. Golden

University of Texas at Austin - School of Law

Umit Gurun

University of Texas at Dallas

Scott Duke Kominers

Harvard University

Date Written: October 17, 2017


The patent system is commonly justified as a way to promote social welfare and, more specifically, technological progress. For years, however, there has been concern that patent litigation is undermining, rather than furthering, these goals. Particularly in the United States, the time, cost, and complications of patent suits provide openings for opportunistic assertions of infringement.

This Article proposes a way to address information problems that facilitate opportunistic assertion: an automatic process of administrative review at the threshold of infringement lawsuits in U.S. district courts. The results of this review would be non-binding but admissible in later court proceedings. Whether conducted by an independent Patent Litigation Review Board or a division of the U.S. Patent and Trademark Office, such review would: (1) help discourage -- or bring to an earlier and less costly end -- relatively weak patent-infringement lawsuits; (2) strengthen the litigation and bargaining positions of patentees with especially robust cases; (3) flag weaknesses in litigation positions to the benefit of private parties and the courts; and (4) provide policymakers with information that facilitates evaluation and adjustment of patent system performance. This Article uses multiple economic models to show the likely benefits of early-stage administrative review. Nonetheless, because of the fluid and complex nature of the patent litigation landscape, this Article proposes that the review process initially be adopted on a pilot basis.

Keywords: Patents, Patent Trolls, Patent Litigation Review Board, Opportunistic Patent Litigation

JEL Classification: K11, K41, O34

Suggested Citation

Cohen, Lauren and Golden, John M. and Gurun, Umit and Kominers, Scott Duke, 'Troll' Check? A Proposal for Administrative Review of Patent Litigation (October 17, 2017). 97 Boston University Law Review 1775 (2017); U of Texas Law, Law and Econ Research Paper E576. Available at SSRN: https://ssrn.com/abstract=3069819

Lauren Cohen

Harvard Business School ( email )

Rock Center 321
Soldiers Field
Boston, MA 02163
United States

HOME PAGE: http://www.people.hbs.edu/lcohen

National Bureau of Economic Research (NBER) ( email )

1050 Massachusetts Avenue
Cambridge, MA 02138
United States

John M. Golden

University of Texas at Austin - School of Law ( email )

School of Law
727 East Dean Keeton Street
Austin, TX 78705
United States
(512) 232-1469 (Phone)

Umit Gurun

University of Texas at Dallas ( email )

2601 North Floyd Road
Richardson, TX 75083
United States

HOME PAGE: http://www.umitgurun.com

Scott Duke Kominers (Contact Author)

Harvard University ( email )

Rock Center
Harvard Business School
Boston, MA 02163
United States

HOME PAGE: http://www.scottkom.com/

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