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Full-Text Articles in Law
Predictably Expensive: A Critical Look At Patent Litigation In The Eastern District Of Texas, Brian Love
Predictably Expensive: A Critical Look At Patent Litigation In The Eastern District Of Texas, Brian Love
Faculty Publications
In this Essay, we compare U.S. patent litigation across districts and consider possible explanations for the Eastern District of Texas’s popularity with patent plaintiffs. Rather than any one explanation, we conclude that what makes the Eastern District so attractive to patent plaintiffs is the accumulated effect of several marginal advantages — particularly with respect to the relative timing of discovery deadlines, transfer decisions, and claim construction — that make it predictably expensive for accused infringers to defend patent suits filed in East Texas. These findings tend to support ongoing efforts to pass patent reform legislation that would presumptively stay discovery …
Inter Partes Review: An Early Look At The Numbers, Brian Love, Shawn Ambwani
Inter Partes Review: An Early Look At The Numbers, Brian Love, Shawn Ambwani
Faculty Publications
In the roughly two years since inter partes review replaced inter partes reexamination, petitioners have filed almost two-thousand requests for the Patent Trial and Appeal Board to review the validity of issued U.S. patents. As partial data on inter partes review (IPR) has trickled out via the blogosphere, interest from patent practitioners and judges has grown to a fever (and sometimes fevered) pitch. To date, however, no commentator has collected a comprehensive set of statistics on IPR. Moreover, what little data currently exists focuses on overall institution and invalidation rates — data that, alone, gives us little idea whether IPR …
Make The Patent 'Polluters' Pay: Using Pigovian Fees To Curb Patent Abuse, Brian Love, James E. Bessen
Make The Patent 'Polluters' Pay: Using Pigovian Fees To Curb Patent Abuse, Brian Love, James E. Bessen
Faculty Publications
Inspired by a groundswell of public outrage against a recent spate of egregious patent enforcement targeting small businesses, five patent reform bills have been proposed in the last four months. All five aim to curb nuisance-value patent litigation, a phenomenon popularly referred to as “patent trolling,” by reducing the cost of defending these suits. In this essay, we argue that these bills, while admirable, treat the symptoms of our patent system’s ills, rather than the disease itself: a growing glut of unused high-tech patents that have little practical value apart from use as vehicles for nuisance-value litigation. Accordingly, we urge …
Expanding Patent Law's Customer Suit Exception, Brian J. Love, James C. Yoon
Expanding Patent Law's Customer Suit Exception, Brian J. Love, James C. Yoon
Faculty Publications
Recent years have seen a marked increase in patent suits filed primarily for nuisance value. Non-practicing patent holders like Innovatio, Lodsys, PACid, and many others have collectively sued thousands of alleged patent infringers in cases that generally settle for less than the cost of mounting even the slightest defense. Suits like these overwhelming target the numerous resellers and end users of allegedly infringing products, rather than the accused products’ original manufacturer. More individual defendants means more lawyers, more discovery, and, thus, more litigation costs to inflate settlement amounts. With legislative reform unlikely at present, doctrinal solutions to this problem are …
An Empirical Study Of Patent Litigation Timing: Could A Patent Term Reduction Decimate Trolls Without Harming Innovators?, Brian J. Love
An Empirical Study Of Patent Litigation Timing: Could A Patent Term Reduction Decimate Trolls Without Harming Innovators?, Brian J. Love
Faculty Publications
This article reports the findings of an empirical analysis of the relative ages of patents litigated by practicing and non-practicing patentees. Studying all infringement claims brought to enforce a sample of recently expired patents, I find considerable variance. Product-producing companies predominately enforce their patents soon after issuance and complete their enforcement activities well before their patent rights expire. NPEs, by contrast, begin asserting their patents relatively late in the patent term and frequently continue to litigate to the verge of expiration. This variance in litigation timing is so dramatic that all claims asserting the average product-company patent are resolved before …