Quarterhill Inc T.QTRH

AIA had “wiped out about $1 trillion in the US economy”

[wanttoknowwhy]

Fate of the Despised — A Concise Chronicle

Baker Botts LLP

A troll is an ugly mythological creature that lives under a bridge, waiting to extort a hefty fee from whomever crosses the bridge. This vivid description of a patent troll often provides a sufficient reason to despise such an entity without giving it a second thought. However, missing from this picture is that the so-called patent trolls, often referred to as non-practicing entities (NPEs) or patent assertion entities (PAEs), actually own the bridge. A string of recent news reports seems to portray impending victory against the notorious troll: patent trolls were ordered to pay attorney’s fees;1 the original PAE law firm announced its shutdown;2 a number of PAEs have dramatically laid off employees;3 others announced that the environment has been so hostile and the business model is no longer feasible.4 However, today’s perceived success of the crusade against patent trolls may have come with a significant price.
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Finally, just as some were celebrating the defeat of patent trolls, the pendulum may be ready to swing back. On June 12, 2017, in a surprising move, the Supreme Court granted certiorari in Oil States Energy Services LLC v. Greene’s Energy Group, LLC25 to review the constitutionality of IPR proceedings. Many perceive the Oil States case as presenting a legal issue of whether patent rights are a private property right that cannot be taken away by an Article I court without a jury trial or a public property right. However, both sides of the dispute will have no trouble in finding some support in the patent law jurisprudence for its arguments and will be able to formulate arguments distinguishing and limiting the scope of prior adverse opinions.26 The key issue is whether IPRs strike the right policy balance of weeding out the low quality patents without severely impairing overall patent rights. A 2015 article estimated that the AIA and IPR proceedings had “wiped out about $1 trillion in the US economy.”27 The U.S. Chamber of Commerce now ranks the U.S. patent system tenth worldwide in a tie with Hungary, a steep drop from the number one position in 2016.28 The recent 12th Annual Advanced Patent Law Institute hosted by the USPTO, University of Texas Law School, and Antonin Scalia Law School, George Mason University painted a rather dismal picture of U.S. patent law system.29 The consensus of a panel discussion, titled “The Current Patent Landscape in the US and Abroad,” was “that dramatic changes to the US patent system are driving investment in research and development outside the country and threatening the future of American innovation.”30 Perhaps, the Supreme Court will take the above policy issues into consideration as it formulates the legal analysis of private rights and public rights. Hopefully, the Court is well aware that the fate of the despised is closely intertwined with that of the patent law system critical to the prosperity of this country.

https://www.lexology.com/library/detail.aspx?g=fde8e200-2a32-44eb-b83a-f36b51f2e5b4