As noted earlier on the Malloy & Malloy IP Blog, a national discussion has emerged on what many perceive as increasingly widespread and over-aggressive tactics by “patent trolls.” Patent trolls, which are less pejoratively known as patent assertion entities (PAEs) or non-practicing entities (NPEs), are persons or companies who legitimately obtain patent rights and then enforce the patents against alleged infringers, without actually making or using the patented inventions themselves (which is perfectly legal).
Given the surge in patent lawsuit filings by NPEs in recent years (some assert that a majority of all patent lawsuits were brought by NPEs in 2012), it is not surprising that there has been an increase in public awareness as well as increased administrative and legislative attention, including recent action by the ITC, the White House, members of Congress, etc. Just recently, forty four large companies, including Wal-Mart and Morgan Stanley, sent a letter to the judiciary committees of the U.S. Senate and House of Representatives in support for new legislation that would broaden the power of the U.S. Patent and Trademark Office to review the legitimacy of issued patents (press releases: here and here).
Indeed, there has been a recent flurry of new legislation which aims to address certain formalities by which patent infringement lawsuits or similar proceedings are filed, as well as to enhance the U.S. Patent and Trademark Office’s powers to review granted patents, all in efforts to curb over-aggressive patent enforcement tactics. In some respects, the current legislative activity parallels the 2011 legislative efforts taken against over-aggressive qui tam false patent marking lawsuit filings, which was ultimately addressed by the America Invents Act (AIA).
Examples of new legislation aimed at curbing abuses of patent enforcement include: