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The Private and Social Costs of Patent Trolls
James E. Bessen - Boston University - School of Law
Michael J. Meurer - Boston University - School of Law
Jennifer Laurissa Ford - Boston University - School of Law
September 19, 2011

page 3

But a self-described new crop of NPEs has emerged that asserts patents and litigates them on an unprecedented scale, involving thousands of defendants every year in hundreds of lawsuits.
Do these litigating NPEs improve markets for technology and increase incentives for small inventors? Or are they patent trolls who exploit weaknesses in the patent system?

page 8

Much of this litigation concerns software patents, including business process patents. Chien finds that 90% of the high tech lawsuits involve software or finance patents. Allison et al. (2010) study patents litigated multiple times and find that software patents account for 94% of the lawsuits.

page 11

page 18
. And the business costs of patent litigation can be large even for those who ultimately win the lawsuits.
For example, in the 1990s Cyrix introduced a new class of Intel-compatible microprocessors. Intel sued for patent infringement, but ultimately lost the suit.
Nevertheless, while the suit progressed for a year and a half, Cyrix had difficulty selling these microprocessors to computer manufacturers, who were also customers of Intel. Cyrixs private loss was a loss to society as well.

page 24
Thus the rise of this new business model can be explained by the rise of fuzzy boundaries for software and other patents.
Large numbers of hidden patents or patents with unpredictable boundaries provide an opportunity to extract rents from technology firms. But this is a very different business from the business pursued by those patent brokers, consultants and auctioneers who facilitate markets for technology.

page 25
We have shown that defendants have lost over half a trillion dollars in wealthover $83 billion per year during recent yearsand this has not improved incentives to innovate. While the lawsuits might increase incentives to acquire vague, over-reaching patents, they do not increase incentives for real innovation. The defendants in these lawsuits are firms that already invest a lot in innovation.
Their losses make it more expensive for them to continue to do so and it also makes them less willing to license new technologies from small inventors.

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