Over the past several years, there has been a growing cry from the business sector about a menacing plague rising in the form of patent litigation originated by non-practicing entities, more commonly referred to as “patent trolls.” Big business, academicians, practitioners and politicians alike are demanding that our patent system be reformed to address this parasite to American capitalism. Lately, it appears that there has been an all-out attack on this professed scourge of the business world, from the White House, to the halls of Congress, to the United States Supreme Court, and even to various State Houses and Attorneys General across the country. Now we have to ask: Has the patent troll seen its time come and go?
Since passage of the America Invents Act, there have been no less than 12 bills presented in Congress directed at curbing perceived abuses of the U.S. patent system, particularly in enforcement of patent rights. Several changes to the Patent Act, including discovery reform, heightened pleading requirements and amending the Patent Act’s fee shifting provisions to a loser-pays system, are all on the table. Even a cursory view of the proposed amendments show they are principally directed at curbing perceived abuses by patent trolls.
In addition, at least nine states including Vermont, Oregon, Wisconsin, Georgia, Virginia and Missouri, have either passed or are considering legislation directed at curbing the rise in mass mailing demands from trolls for patent license payments. Generally, these legislative enactments make it a crime to send patent licensing demands that contain false or misleading information. Wisconsin, for example now requires any notification seeking enforcement of a patent to include comprehensive patent information including detailed facts forming the basis for the infringement allegations and an identification of any pending court or administrative proceeding related to each asserted patent. In addition, states are empowering their attorneys general to enforce the provisions of their anti-troll laws with both civil and criminal action.