The term “patent troll” has become a part of the American legal lexicon. Many believe that litigation by patent trolls—entities in the business of asserting patents rather than making products—is rampant and continues to harm innovation and raise consumer prices. Some argue abusive litigation tactics conducted by patent trolls coupled with excessive verdicts cost the U.S. economy $1.5 billion per week. This concern has spread to Congress and the U.S. Patent and Trademark Office (USPTO), which are considering new regulation.
Despite this increasing attention, there remains insufficient data to determine the amount and impact of patent troll litigation. To address this knowledge gap, since the fall of 2013, Stanford Law School students participating in the Empirical Study of Patent Troll Litigation practicum, like myself, have been compiling the first-ever comprehensive public patent litigation dataset to categorize the type of patent plaintiff involved in every patent lawsuit over a significant time span. By the end of 2016, we expect to complete categorization of the 55,000 lawsuits filed between 2000 and 2015 and then will make the full dataset publicly available.
I joined the practicum in the spring quarter of 2015, continuing in the fall quarter. This experience has become a major component of my time here at the law school. Stanford policy practicums allow students to contribute meaningfully to issues of national importance. I have had the opportunity to help craft a major policy paper, to present our initial findings to the USPTO and the Federal Trade Commission (FTC) in Washington, D.C., and to plan an upcoming symposium, tentatively scheduled for spring 2017, of leading scholars and policymakers to address pressing issues with the patent system.
Mark Lemley (BA ’88), William H. Neukom Professor of Law, and Shawn Miller, teaching fellow and lecturer in law, ably direct the practicum and provide not only a source of mentorship but also the opportunity to place student-driven work product into the hands of policymakers. Students meet every Monday for quality control of the dataset and to coordinate work deliverables.
To date, the interest groups and scholars that use the term patent troll disagree about which types of patent owners are and are not patent trolls. And many refuse to use the term at all. Among those who do use it, almost all agree that a patent troll must be a “non-practicing entity” (NPE), or an entity that owns patents but does not create or sell products or services. Most definitions further specify that a patent troll must be an entity that exists solely to assert patents against other actors, birthing the term “patent assertion entity” (PAE). With the release of the Stanford NPE Litigation Dataset, researchers will have access to data that can help to inform patent policy related to PAEs and other types of entities and help paint a more complete picture of how the patent system is working.
Our general findings so far indicate that litigation growth in the past 15 years is due largely to the rise of PAE-initiated lawsuits. These lawsuits tend to involve software patents and they resolve much more quickly than other lawsuits, lending credence to the theory that PAEs often assert with the goal of extracting quick money from defendants.
The practicum is much more than just the creation of a meaningful work product and research findings. Some work bonds started in the practicum will outlast law school. Practicum member Ashwin Aravind, JD ’18, and I will both start our careers at Cravath, Swaine & Moore LLP after graduation.