Proposed bill targeting patent ‘trolls’ may harm legitimate litigants

KWIKA partner Jonathan Steinsapir was quoted by Law360 in Ryan Davis’ piece (subscription required) about a draft House bill aimed at reducing patent infringement claims by so-called “patent trolls” or “nonpracticing” patent enforcement entities.

The proposed bill would require a claimant to file a detailed complaint, which, while discouraging the trolls, will make it more complex and costly for legitimate claims.

As Jonathan says, “These new pleading requirements wouldn’t just impact trolls or nonpracticing entities.  It would really change the nature of patent litigation in a fundamental way.  Tightening the requirements would create a lot of litigation up front, before you get to whether the patent was infringed, about whether the plaintiff adequately alleged infringement.”

Another part of the bill proposes that discovery be narrowly limited during the early stages of a case to discourage certain entities from using a common tactic:  running up the accused’s legal costs with massive discovery requests.  But of course this will affect legitimate cases as well, which will give all patent litigation unique discovery requirements.  “That might be a good reform or a bad reform, but it’s not directed to trolls generally,” said Jonathan.

Finally, in spite of the 2011 America Invents Act, the most significant patent law revision since 1952, Jonathan believes there are still a lot of unresolved issues.  He says the amount of legislation aimed at nonpracticing entity litigation just two years after such a major redo of patent law demonstrates that the new statute left a lot to be desired in the regulation of patent litigation.

“It shows that there’s a lot of frustration about the patent system generally.”