This Article explores the largely overlooked relationship between claim construction and patent assertion entities (patent “trolls”), finding that claim construction problems and trends benefit patent assertion entities. First, the Federal Circuit’s deep divide over the proper approach to claim construction creates uncertain patent scope, which is widely recognized as a core reason for the success of patent assertion entities. Second, case law and commentary increasingly endorse an approach to claim construction that relies on the “general meaning” in the technical field with limited reliance on the patent itself, which benefits patent assertion entities by increasing the breadth and uncertainty of patent scope. Third, the Supreme Court’s recent adoption of a more deferential standard of review for claim construction in Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. increases the benefits patent assertion entities receive from filing in favorable district courts, like the Eastern District of Texas, as well as their incentives to do so. If patent assertion entities are as problematic as widely thought, these claim construction problems and trends warrant reconsideration. Current claim construction rules and trends may be warranted despite their positive impact on patent assertion entities. And other means may exist for combatting patent assertion entities without altering claim construction rules or trends. But the positive effects for patent assertion entities must at least be factored into any cost-benefit analysis of claim construction rules. Moreover, the fact that current claim construction rules and trends produce the conditions under which patent assertion entities thrive suggests that patent assertion entities may be a symptom of larger problems with claim construction doctrine.
Patent "Trolls" and Claim Construction,
Notre Dame L. Rev.
Available at: http://scholarship.law.nd.edu/ndlr/vol91/iss3/4