November 6, 2013

GAO Report: Looking for the Real Troll

By Matthew L. Cutler, Principal

Below is the introduction to my article, entitled “GAO Report: Looking for the Real Troll,” that published in Intellectual Property Magazine on October 29, 2013. The full article can be found HERE.

As a tidal wave of attention and criticism, from legislative, judicial, and national press sources, continued to be heaped on ‘non-practicing entities’ (NPEs), the Government Accountability Office (GAO) recently tossed out a life preserver, in the form of its study on the consequences of patent litigation by NPEs. This long-anticipated report was expected to be the latest salvo in a relentless attack against NPE activities, but instead was a more muted assessment of the damage being done by NPE patent litigation.

While patent litigation is certainly trending higher, the GAO report found that NPEs were only a part of the problem. The majority of the blame for any uptick in litigation, per the report, should be centred on the United States Patent and Trademark Office (for issuing bad patents), the US court system (for issuing overly large damage awards), and even simple capitalistic instinct (which has sniffed out the high value of patents). But, the GAO report also praises the USPTO and courts for recently implementing significant changes that, at the least, hold great promise.

In short, and as discussed below, the issues that have led to an over 30% increase in lawsuits filed from 2010-11, versus the 10-year period that preceded 2010, are varied and complicated. So are the possibilities for returning patent litigation to the mean. Ultimately, however, the GAO report finds that it is the software patents being issued, not the type of litigants enforcing them, which hold the key to reining in the growth in patent infringement litigation.