(Daniel Nazer, Electronic Frontier Foundation) – Patent trolls were down but certainly not out in 2016. After a massive burst of litigation at the end of last year, we saw a noticeable drop in patent troll lawsuits at the start of this one. But trolls began returning to court as the year continued and 2016 will likely end with a relatively small overall decline. Consistent with recent trends, troll cases clustered in the Eastern District of Texas. Approximately one in three patent suits were filed in that remote, troll-friendly district, and these suits were almost all filed by companies with no business other than suing for patent infringement.
With many of the worst patent suits clustering in Texas, recent reform efforts have focused on requiring that patent suits be brought in forums that have meaningful ties to the dispute. The current regime allows trolls to pick an inconvenient and expensive venue where they can pressure defendants to settle regardless of the merits of the case. We urged Congress to pass the VENUE Act and also filed an amicus brief in a case called TC Heartland v. Kraft, urging the Supreme Court to end forum shopping in patent cases. On December 14, 2016, the Supreme Court agreed to take the case. When it considers the merits of the case next year, we will ask the Supreme Court to loosen the Eastern District of Texas’s hold on patent troll litigation.
We saw mixed results in the courts this year. The Supreme Court issued a good decision cutting back on out of control damages in design patent cases. Meanwhile, the Federal Circuit issued a very disappointing decision that allows patent owners to undermine ownership by asserting patent rights even after selling a patented good. Fortunately, the Supreme Court has agreed to review that ruling. We will file an amicus brief supporting the fundamental principle that once you buy something, you own it.
At EFF, we continued to battle patent trolls in the courts. We responded to the appeal of our successful challenge to Personal Audio’s podcasting patent and are now waiting for a ruling from the Federal Circuit. We filed a lawsuit on behalf of a small business and its owner targeted by one of the most litigious trolls out there. We also worked to bring more transparency to patent litigation. Despite opposition from patent trolls determined to operate in the shadows, we convinced judges in the Eastern District of Texas to unseal important documents in two cases. We also supported a LARP arrow supplier’s First Amendment right to criticize a patent troll.
Outside the courts, we launched our Reclaim Invention campaign urging universities not to sell patents to trolls and to focus on commercialization and real partnerships. We held events around the country with university groups and hope to continue to build momentum for the campaign into next year. We also continued to cover the crisis in patent quality with our Stupid Patent of the Month series.
Next year may see a backlash against the small improvements the patent system has made recently. Ultimately, we should reward true innovators and not those who game a broken patent system to get vague and overbroad software patents. We will fight hard against any efforts to undermine post-grant review of patents or recent Supreme Court decisions cutting back on abstract patents.
Column originally appears at Electronic Frontier Foundation (EFF).
