Law Commons^™

The Market For Software Innovation Through The Lens Of Patent Licenses And Sales, Colleen V. Chien

Faculty Publications

Software innovation is transforming the US economy. Yet our understanding of how patents and patent transactions support this innovation is limited, in part because of a lack of public information about patent licenses and sales. Claims about the patent marketplace, for example, extolling the virtues of intermediaries like non-practicing entities, or questioning the social utility of ex post patent licenses, tend not to be grounded in empirical evidence. This article brings much-needed data to the policy debate by analyzing transactional data from several proprietary databases of patent licenses and transfers, and reporting several novel findings. First I find that, despite …

Startups And Patent Trolls, Colleen Chien

Faculty Publications

While patent assertion entities (or patent “trolls”) have received a lot of attention, little of it has focused on the distributional impacts of their demands. The impact on PAEs on startups is crucial, because startups contribute to job creation and innovation, making them potential targets and sources of patents. To assess the impact of trolls on startups, I analyzed a comprehensive database of patent litigations from 2005 to the present, conducted a non-random survey of 223 tech company startups, and interviewed nearly twenty entities with relevant knowledge of startup patent issues.

I find that although large companies tend to dominate …

Reforming Software Patents, Colleen Chien

Faculty Publications

While many believe the patent system has hit a historic and unprecedented low, discontent with patents, and in particular with software patents, is nothing new. In 1966, a Presidential Commission recommended prohibiting software patents because of the PTO’s inability to vet them. In 1883, the Supreme Court railed against “speculative schemers who make it their business to watch the advancing wave of improvement and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax.” In 1836, the Ruggles Report documented how lax patent standards, “encourag[ed] fraudulent speculators in patent rights, deluging the entire …

Patent Amicus Briefs: What The Courts’ Friends Can Teach Us About The Patent System, Colleen Chien

Faculty Publications

Over the last two decades, more than a thousand amici, representing hundreds of organizations, companies, and individuals, have signed onto amicus briefs in over a hundred patent cases, many of them landmark decisions. This paper turns the spotlight on these “behind-the-scenes” actors in the patent system, combining theoretical insights with an empirical study of amicus briefs filed in patent cases over the last 20 years in an examination of patent interest groups, the positions they have advocated, and the effectiveness of their advocacy. Amicus filers appear to have been instrumental in shaping the courts’ agenda; the Supreme Court was seven …

Predicting Patent Litigation, Colleen Chien

Faculty Publications

Patent lawsuits are disruptive, unpredictable, and costly. The inability to anticipate patent litigation makes it practically uninsurable, exposes companies to late-stage suits, and drives companies to rapidly accumulate patents in order to ward off litigation. This article confronts this systemic problem, by examining the factors that lead a particular patent to be litigated – only around 1% of patents ever is. It relates the eventual litigation of a patent to earlier events in the patent’s life, including changes in ownership of the patent (assignments, transfers, and changes in owner size), continued investment in the patent (reexamination, maintenance fees), securitization of …

From Arms Race To Marketplace: The Complex Patent Ecosystem And Its Implications For The Patent System, Colleen Chien

Faculty Publications

For years, high-tech companies have amassed patents in order to deter patent litigation. Recently, a secondary market for patents has flourished, making it more likely that patents that would otherwise sit on the shelf will end up in the courtroom. This Article explores the current patent ecosystem, which includes both “arms race” and “marketplace” paradigms, in depth. I distinguish “patent-assertion entities,” entities that use patents primarily to obtain license fees rather than to support the development or transfer of technology, from other types of non-practicing entities. I contrast the patent arms race, whose goal is to provide entities with the …

Patently Protectionist? An Empirical Analysis Of Patent Cases At The International Trade Commission, Colleen Chien

Faculty Publications

The International Trade Commission (ITC) provides a special forum for adjudicating patent disputes involving imports. It offers several advantages over United States district courts to patentees, including relaxed jurisdictional requirements, speed, and unique remedies. Unlike district courts, the ITC almost automatically grants injunctive relief to prevailing patentees, and does not recognize certain defenses to infringement. These features have been justified as needed to prosecute foreign infringers who would otherwise evade U.S. district courts. They have also led to charges that the ITC is protectionist and unfair to defendants and that it fosters inconsistency in U.S. patent law.

Based on an …