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Address Abusive Patent Litigation By Reducing Innocent Infringement

Matthew K. Blackburn

©2014. Published in Landslide, Vol. 6, No. 6, July/August 2014, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Complaints about abusive patent litigation are in vogue. The popular press is filled with stories about so-called “patent trolls” or patent assertion entities (PAEs) waging war against technology innovators. These PAEs are a tax on the U.S. economy. PAEs do not make products or supply services based upon their patents—they enforce patents only to generate licensing fees. The desire to thwart these PAEs has led to a myriad of patent reform proposals to fix the “broken” U.S. patent system. These proposals range from creating a fee shifting system where a losing litigant would pay the accused infringer’s legal fees, to requiring disclosure of patent ownership records, to requiring a patent holder to provide additional details in the complaint when filing suit. These proposals miss the mark, placing at risk the U.S. patent system—which is the envy of the world.

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