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Expert Analysis

Change In Marking Statute Would Curtail Troll Litigation

Law360, New York (March 3, 2015, 10:40 AM EST) -- The sole motivation driving patent litigation brought by patent assertion entities, or so-called trolls, is money.[1] Unlike a manufacturing company, a PAE typically has no legitimate business need to exclude a competitor from the market for its invention (i.e., obtain an injunction), or to recover damages to compensate for lost profits or sunk research and development costs. This article proposes an initial framework for curtailing undesirable PAE behavior by implementing a relatively minor revision to 35 U.S.C. §287(a) (the "marking statute"). The revision would reduce the "pot of gold" a PAE can demand at the outset of a patent case as compensation for past damages....

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