December 01, 2019 Feature

Pulling Back the Curtain on Complex Funding of Patent Assertion Entities

Jonathan Stroud

©2019. Published in Landslide, Vol. 12, No. 2, November/December 2019, 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.

We are told that patent trolling—lawyers leveraging the high cost of litigation defense to extract nuisance settlements on defunct or questionable patents—is whimsical fairy tale. That it is a derogatory “narrative” meant to scare legislators and decision makers into submission. That the 330,000 patents issuing this year1 are all valid; that no wasteful litigation persists; that no data is needed to demonstrate the various and sundry ills of the America Invents Act (AIA), that dirtiest kind of legislative reform—the effective kind; that the ever-vague pendulum has swung somewhere bad and balance must be restored to the force, by force. That even if the supposed nonpracticing entity (NPE) threat were once legitimate, it has now gone the way of mask works and the best mode doctrine—found only as a footnote in the historical annals of patent law. That it’s okay again to worry more about the bottom line of patent litigation practices and the proliferation of high-stakes litigation than it is to be concerned with their effects on the bottom line of U.S. businesses. That we should pay no attention to the man (and it is almost always a man) behind the curtain.

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