About the author: D.J. Nordquist is executive vice president of the Economic Innovation Group and the former chief of staff of the White House Council of Economic Advisers.
The authors focus on the imprecision of the current patent regime. They note nonpracticing entities have been able to take advantage of holes in the legal system. NPEs are companies that own or invest in patents but don’t use the patents themselves. Billions are spent annually on third-party funded litigation, some of which backs bad-faith NPEs or “patent trolls” who exploit unclear patent definitions to extract settlement payments from U.S. businesses.
Another issue in the steep rise of patent litigation is the litigant itself, which may have national security implications. Sunshine may be the best disinfectant, as Supreme Court Justice Louis Brandeis once said, but few jurisdictions require disclosure of the litigant’s funders. That lack of disclosure not only stresses firms with uncertainty, but also opens up the U.S. to potentially adversarial foreign governments such as China or Russia taking advantage of the U.S.
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