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Patent Bullies: How Industry Incumbents Abuse the Patent System

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Abstract:

This paper introduces the notion of the "patent bully"--an established, usually large, company that sells products and holds a sizable portfolio of patents that it uses to suppress competition, gain market share, and extract rents by threatening or instituting costly patent infringement actions. In an ideal world of high-quality patents and optimal patent litigation, the actions of patent bullies would have a cleansing, almost Darwinian effect. Yet, the defects and distortions in patent examination and litigation--the exact problems that are raised constantly in the context of so-called "patent trolls"--generally apply with equal and, often, greater force to patent bullies. Nonetheless, patent bullies have scarcely been discussed in the academic literature or popular press, especially in recent years. By performing an exhaustive empirical analysis of patent litigation over the last 10 years, I show that the abusive behavior of patent bullies is a highly problematic aspect of the patent system. This is especially so, because bullies often assert their patents against innovative start-up and early-stage companies that have opened new commercial markets that the bullies desire to enter and dominate. Also troublesome, patent bullies have formed “keiretsu”-style, cross-licensing cohorts among themselves to restrain new market entrants. I suggest potential solutions, including improvements in patent office examining procedure, apportionment of damages, compulsory licensing, fee-shifting, and stronger antitrust laws.
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Name: The Law and Society Association
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http://www.lawandsociety.org


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URL: http://citation.allacademic.com/meta/p303551_index.html
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MLA Citation:

Sichelman, Ted. "Patent Bullies: How Industry Incumbents Abuse the Patent System" Paper presented at the annual meeting of the The Law and Society Association, Grand Hyatt, Denver, Colorado, May 25, 2009 <Not Available>. 2014-11-29 <http://citation.allacademic.com/meta/p303551_index.html>

APA Citation:

Sichelman, T. , 2009-05-25 "Patent Bullies: How Industry Incumbents Abuse the Patent System" Paper presented at the annual meeting of the The Law and Society Association, Grand Hyatt, Denver, Colorado <Not Available>. 2014-11-29 from http://citation.allacademic.com/meta/p303551_index.html

Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: This paper introduces the notion of the "patent bully"--an established, usually large, company that sells products and holds a sizable portfolio of patents that it uses to suppress competition, gain market share, and extract rents by threatening or instituting costly patent infringement actions. In an ideal world of high-quality patents and optimal patent litigation, the actions of patent bullies would have a cleansing, almost Darwinian effect. Yet, the defects and distortions in patent examination and litigation--the exact problems that are raised constantly in the context of so-called "patent trolls"--generally apply with equal and, often, greater force to patent bullies. Nonetheless, patent bullies have scarcely been discussed in the academic literature or popular press, especially in recent years. By performing an exhaustive empirical analysis of patent litigation over the last 10 years, I show that the abusive behavior of patent bullies is a highly problematic aspect of the patent system. This is especially so, because bullies often assert their patents against innovative start-up and early-stage companies that have opened new commercial markets that the bullies desire to enter and dominate. Also troublesome, patent bullies have formed “keiretsu”-style, cross-licensing cohorts among themselves to restrain new market entrants. I suggest potential solutions, including improvements in patent office examining procedure, apportionment of damages, compulsory licensing, fee-shifting, and stronger antitrust laws.


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