The Exploitation and Enforcement of Patents By Non-practicing Entities: Practices, Developments, and Future Challenges

The last fifteen years has witnessed major and dramatic changes in the world of patent law and patent litigation. The impetus for these changes has not only come from the usual sources - the judiciary, legislators, and administrative agencies, and from advances in technology and innovation, but also from actors operating within the patent landscape. One particular type of patent actor operating in the intellectual property (IP) realm that seemingly everyone is talking about are “Non-practicing Entities” (NPEs), or their more pejorative alternate “patent trolls”. NPEs are generally described as entities that create business models focused solely on the exploitation and enforcement of patents to generate revenues. Labelled as the “most significant problem facing the patent system today”, the NPE phenomenon has become a highly polarized debate in academia and on the political stage. Vilified by companies, academics, congresspersons, the U.S. Supreme Court, and even former U.S. President Barack Obama, NPEs are at the center of a contentious patent law and policy debate focused on vexatious patent exploitation and enforcement related to alleged abusive behaviours of patent owners demanding “excessive” patent licensing fees, creating an “explosion” of unwarranted patent litigation, imposing undue burdens on industry, and thereby stifling innovation. However, there is very little empirical evidence to substantiate such claims made about NPE patent enforcement. Even more unfortunate is the fact that it is headline catching terms like “patent troll” that appear to have captured much of the public’s imagination and policymakers’ attention of such pure patent licensing entities. The “patent troll” rhetoric has arguably itself contributed to much of the misunderstanding and disapproving perceptions of such entities operating in the patent marketplace, and to a greater extent, negative perceptions being formed of the patent system overall. This dissertation discusses these issues and provides new insights into the NPE phenomenon by empirically exploring and examining the exploitation and enforcement of patents by NPEs in three major patent jurisdictions, namely the U.S.A., Europe, and China. The dissertation adds to patent literature by providing a more balanced academic discussion on the highly polarized NPE debate, and contributes to the scarce knowledge on the NPE phenomenon through the presentation of its substantial introduction covering four chapters, followed by a compilation of three published research papers. At the core of the dissertation is the proposition that argues despite some of their drawbacks, NPEs effectively contribute to the patent ecosystem and play an integral role in the enforcement of patents, which is a key element in any well-functioning patent system