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Removing the Troll from the Thicket: The Case for Enhancing Patent Maintenance Fees in Relation to the Size of a Patent Owner\u27s Patent Portfolio

By David S. Olson


This Article proposes a novel solution to part of the problem that large patent portfolios can cause. Both so-called \u22patent trolls\u22 and firms that commercialize the patents that they own can accumulate and then abuse large patent portfolios, even if most of the patents in the portfolio are of little value. Instead of suggesting reforms to better determine the value and boundaries of individual patents, as many others have already done, this Article proposes that the U.S. Patent and Trademark Office (PTO) multiply the amount owed to keep a patent in force (patent maintenance fees) based on the size of a patent holder\u27s overall patent portfolio. Patent owners themselves will primarily benefit from this reform, as they will have an incentive to determine the value of their patents and to let lapse those patents that are of low value. A second benefit is that it will require patent owners to disclose their practiced and non-practiced patents. The reform proposed in this Article helps alleviate problems in software and high-technology patenting without significant negative effect in other industries, such as pharmaceuticals or biotechnology. It is simple, and the PTO can easily adopt it, or Congress can enact it

Topics: Intellectual Property Law, Science and Technology Law
Publisher: Digital Commons @ Boston College Law School
Year: 2017
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