Interactive Open Floor Discussion on Proposed Legislation on “Non-Practicing Entities”

January 23, 2014 3:30pm

Hans Sauer Ph.D., J.D.
Deputy General Counsel for Intellectual Property
Biotechnology Industry Organization (BIO) (Washington, DC)

Richard Gervase
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

During the years leading up to the AIA, numerous proposals were submitted to include measures to combat alleged “troll” litigation. In the end, the AIA included a non-joinder provision and little else deemed to target this issue. Perhaps the most sensationalized aspect of modern patent litigation, the topic of “patent trolls” has received direct attention from the President, the Chief Judge of the Federal Circuit, a host of legislators, and, as a consequence, the main stream media.

This session will begin with a survey of the pending legislation aimed at this supposed problem, followed by an open discussion on such issues as:
• Do the new proceedings under the AIA affect litigation by “trolls”?
– Is there a more cost effective method to deal with frivolous litigation with the advent of the IPR, PGR, and other proceedings?
– Are more “patent assertion” or “non-practicing” entities pursuing these procedures or choosing to remain in federal court?
• What has been the effect of the non-joinder provisions?
– Have less non-meritorious cases been filed?
– Has there been a spike in the number of cases reported due to attempts to circumvent this provision?
• Is legislation needed?
– What are the potential effects of the different types of legislation? What sort of unforeseen consequences could spill out to all forms of patent litigation?
– Do the courts and government agencies already have the tools they need to combat frivolous litigation?
– Should the pleading standard of Form 18 be eliminated?
– Is a mandatory fee-shifting framework a good idea?