Michael Risch (Villanova Law) has posted two new articles on SSRN that are related to recent Written Description posts. The first is Patent Troll Myths (forthcoming in the Seton Hall Law Review), which compares results with Patent Quality and Settlement Among Repeat Patent Litigants by John Allison, Mark Lemley, and Joshua Walker. Risch begins with a provocative claim: "It turns out that just about everything we thought about patent trolls—good or bad—is wrong." Risch started with the ten "most litigious" non-practicing entities (NPEs)—including Acacia Technologies, General Patent Corp., and Ronald A. Katz—and searched for all cases involving these NPEs from 1986 and 2009, resulting in a dataset involving 1011 cases and 400 patents.
Page 3 of the current manuscript has a very helpful summary of the results, debunking myths both criticizing and supporting NPEs—I think all articles should set out their claims so clearly. It's worth downloading the article just to look at this page, so I won't repeat Risch's summary, but I will note the claim that is in the most tension with Allison et al.: "what information is available implies that NPE patent quality is not demonstrably lower than other litigated patents." Risch distinguishes the results of Allison et al. on pp. 21-22—the point about "multiple bites at the apple" seems to misread Allison et al., since they found that the most litigated patents were more likely to be invalidated in any given suit, not only after multiple suits, but Risch is certainly correct that more empirical work is needed in this area. Overall, this article should give those on both sides of the "patent troll" debate some food for thought.
Risch's second new piece is another article on the utility requirement of § 101: A Surprisingly Useful Requirement (forthcoming in the George Mason Law Review). I previously posted on his earlier article, Reinventing Usefulness, which breathed new life into utility doctrine by proposing a "commercial utility" requirement. Risch's new article notes that utility continues to be ignored, and it presents a more sophisticated angle on the doctrine, showing that utility can be used to help resolve difficult questions related to other patentability doctrines.
One thing I find interesting in a recent FTC report is the FTC's distinction between "good" NPEs and patent trolls (which it refers to as "PAEs"). Many have long noted that there is a need to differentiate between NPEs such as universities and those other entities who abuse the system through arguably-excessive patent litigation. Distinguishing between those bad actors and other NPEs may be helpful in narrowing the focus and the terms of the debate over patent trolls.
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