New scholarship from prominent law professors confirms that patent
trolls have become a tremendous influence on the legal system, and that
their efforts have been targeted at a number of distinct industries and
technologies.
While empirical studies are inherently subject to the interpretation of
the researcher and open to the possibility of conflicting vantage
points, this research may provide readers with a foundation for future
discussion and research.
In
Extreme Value or Trolls on Top? The Characteristics of the Most-Litigated Patents,
noted law professors John Allison, Mark Lemley and Joshua Walker seek
to provide real data in response to anecdotes as to the extent of
patent troll activity. The article, published in the most recent
edition of the University of Pennsylvania Law Review, focused on the
patents subject to the most number of litigated patent cases between
2000 and 2007. The authors report that these patents are frequently in
the software and telecommunications fields, as compared to other
technological areas. More significant, the authors note these patents
are “disproportionately owned by non-practicing entities (i.e.,
‘trolls’).”
The authors go on to report the “most-litigated patents are
overwhelmingly likely to be software patents,” finding that software
patents account for nearly 75 percent of those cases involving patents
subject to multiple litigation. It is no surprise to find that the
related computer industry bears the brunt of the majority of such
lawsuits with 72 percent.” By comparison, the authors found that using
a sample size of patents, which were litigated only once, the computer
industry accounted for only 34 percent of all cases. Similar
incongruencies were seen in the telecommunications field as well.
In addition, the authors noted that many of the most litigated patents
were owned by non-practicing entities, at a rate of more than
80 percent!
The authors delineated between inventor-owned companies who do not
produce the patented product, and pure patent trolls, who acquire and
enforce patents. Of this 80 percent, approximately 74 percent of these
cases fall into the former category, with pure patent trolls accounting
for the remaining 6 percent.
While the article is an interesting read, it may only provide a glimmer
into the realities of the situation. The article focuses solely on
those patents which have been subject to the most number of patent
litigation cases. It does not truly take into account (besides the
random sample size of single litigated patents) those patents which
patent trolls have asserted in a single case against a wide swath of
defendants.
Additionally, in light of the thousands of patents that are issued
yearly, the authors do not account for a situation where patent trolls
acquire a collection of patents and sue on each patent separately. The
prospect of a patent troll suing on eight separate patents is no less a
drain on our patent system in comparison to a situation where the troll
sues on the same patent eight times. However, the authors do provide
anecdotal arguments that the patent troll business plan is exploiting a
single strong patent multiple times against as many defendants
available to extract the highest revenue possible. Nonetheless, the
professors do correctly note the importance of non-practicing entities
in the modern patent system is a crucial aspect of the system that
needs to be further investigated and addressed.
