Proxy Patent Litigation II

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3 Responses

  1. jon a. says:

    What if the patents aren’t necessarily representative of the entire portfolio? I.e., a plaintiff isn’t going to pick a random sample of patents to bring to trial, but will select the strongest ones. The court could reason that the remaining patents in the portfolio are of lower quality or have a weaker case for infringement, and ignore them in favor of a more thorough analysis of the core dispute (i.e., the only dispute likely to come before the court). And from the point of view of a defendant, even if you lose a validity ruling on one patent, the rest of the portfolio, being weaker, makes it riskier for the plaintiff to assert.

    This also seems to resemble the bundling of mortgages into securities with pooling agreements–what people thought was representative of the pool turned out not to be, and the pooling agreements were complicated in ways that only the servicers knew about. Relying too much on proxies to maximize speed and cost-effectiveness can end up destroying quality. In this context, it would be important to understand what sort of internal factors drive a mass patent aggregator’s decision to assert a patent. If it’s as simple as “we go after anyone against whom the patent laws give us a cause of action” then the patent would be an accurate proxy for the whole portfolio. But there are other things that a plaintiff could be testing, for example: quality of counsel, favorability of jurisdiction, etc.

  2. AF says:

    I’m not sure that accuracy and thoroughness are separate points of a triangle. In complex cases, thoroughness and accuracy would seem to go together.

    More broadly, I question whether it is appropriate to view courts as project managers for patent aggregators.

  3. parerna says:

    Awesome blog…thanks…