Legislative Responses to Patent Assertion Entities

While the existence of patent assertion entities is not new, in recent years they have proliferated, spawning debate concerning their impact on the patent system and, more broadly, on technological innovation. Despite the fear that they instill in their targets — or perhaps because of it — patent assertion entities arguably serve a beneficial purpose in the patent system. Theoretically they should be able to help individual inventors and small businesses, in particular, obtain a return on their investment in research and development. To the extent patent assertion entities assert patent claims that should be held invalid, not infringed, or unenforceable; obtain unreasonable judgments or settlements; or fail to return a substantial portion of settlements and judgments to inventors, however, patent assertion entities highlight problems with the patent system. This Article thus contributes to the ongoing debate concerning patent assertion entities, first, by identifying three primary problems with the patent system that some patent assertion entities exploit: (1) poor patent quality, (2) problems with patent litigation, and (3) various asymmetries. Then, this Article evaluates the current state of affairs regarding patent reform legislation and, in a largely descriptive sense, considers the extent to which this legislation — some enacted, some pending — addresses these three primary problems. Finally and more broadly, given the patent reform legislation already enacted and the ways in which it has addressed these three primary problems, this Article calls for consideration of whether legislative reform rather than judicial or agency reform is the best avenue to address remaining problems with the patent system