"Troll" Check? A Proposal for Administrative Review of Patent Litigation

Lauren  Cohen; John  Golden; Umit  Gurun; Scott Duke Kominers

Article | Boston University Law Review

"Troll" Check? A Proposal for Administrative Review of Patent Litigation

by Lauren Cohen, John Golden, Umit Gurun and Scott Duke Kominers

Abstract

The patent system is commonly justified as a way to promote social welfare and, more specifically, technological progress. For years, however, there has been concern that patent litigation is undermining, rather than furthering, these goals. Particularly in the United States, the time, cost, and complications of patent suits provide openings for opportunistic assertions of infringement. This article proposes a way to address information problems that facilitate opportunistic assertion: an automatic process of administrative review at the threshold of infringement lawsuits in U.S. district courts. The results of this review would be nonbinding but admissible in later court proceedings. Whether conducted by an independent Patent Litigation Review Board or a division of the U.S. Patent and Trademark Office, such review would (1) help discourage—or bring to an earlier and less costly end—relatively weak patent-infringement lawsuits; (2) strengthen the litigation and bargaining positions of patentees with especially robust cases; (3) flag weaknesses in litigation positions to the benefit of private parties and the courts; and (4) provide policymakers with information that facilitates evaluation and adjustment of patent-system performance. This article uses multiple economic models to show the likely benefits of early stage administrative review. Nonetheless, because of the fluid and complex nature of the patent litigation landscape, this article proposes that the review process initially be adopted on a pilot basis.

Keywords: Patent trolls; Patents; Lawsuits and Litigation;

Format: Print

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Citation:

Cohen, Lauren, John Golden, Umit Gurun, and Scott Duke Kominers. "Troll" Check? A Proposal for Administrative Review of Patent Litigation. Boston University Law Review 97, no. 5 (October 2017): 1775–1841.

Rarely has a minor consumer product received more vilification than the plastic straw. As a symbol of human wastefulness and our careless disregard for the environment, straws are the near-perfect villain. You use a plastic straw once and toss it, but it stays with us forever, sitting in a landfill, floating in the sea or harming wildlife.That's why some local governments like that of New York City have stopped allowing them, along with other single-use plastics. This seems like a perfectly reasonable thing to do, even though plastic straws comprise only a small part of the total volume of plastic disposed of each year.

Case | HBS Case Collection | September 2017 (Revised June 2019)

Dianrong: Marketplace Lending, Blockchain, and 'The New Finance' in China

Christopher J. Malloy, Lauren H. Cohen and Anthony K. Woo

This case examines the strategic positioning of Dianrong, one of the largest online peer-to-peer (P2P) lending platforms in China, in its attempt to become a foundational player in the expansion of the FinTech sector in Asia. Dianrong had recently announced the acquisition of the asset-origination operations of Shanghai-based Quark Finance, augmenting Dianrong’s asset management and credit evaluation capabilities across China, as well as a new initiative to develop the first blockchain platform for supply chain finance in China. The goal was to provide capital to smaller suppliers in the supply chain, and provide enhanced visibility and transparency of supply chains for large multinational manufacturers. The company had also made several recent forays into other related sectors, with their creation of “DR Group” as an umbrella corporate structure that included all wholly-owned businesses, joint ventures, and partnerships. This rebranded group structure encompassed the various aspects of “The New Finance,” leveraging FinTech innovation to deliver value for borrowers, lenders, and investors. Case protagonist Soul Htite, Founder and CEO of Dianrong, and the former CTO of Lending Club, must decide how to execute on the firm’s aggressive diversification plan. Recent advances at the company, while promising, were complicated by the uncertainties in the political and regulatory landscape. How should the company leverage its advantage in technology and position itself in the market? Which sectors within its larger umbrella structure were the most promising avenues to focus on? Was Dianrong tackling too many sectors and problems at once? Htite’s view was that in order to truly succeed in China a technology company had to “create” much of the ecosystem and infrastructure oneself, as opposed to in the US where companies could simply “provide add-ons” to existing firms and capabilities. But the reality of trying to excel in so many different areas was daunting.

Keywords: Financing and Loans; Online Technology; Supply Chain; Finance; Innovation and Invention; Competition; Product Positioning; Strategy; Financial Services Industry; China;

Citation:

Malloy, Christopher J., Lauren H. Cohen, and Anthony K. Woo. "Dianrong: Marketplace Lending, Blockchain, and 'The New Finance' in China." Harvard Business School Case 218-043, September 2017. (Revised June 2019.) View Details

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ClearLife’s first product was a trading and analytics platform for participants in the US life settlement market, the secondary market for life insurance. ClearLife played a key role in facilitating transactions and devising a common language for expressing value and risk in this alternative asset class, and soon became the leading service provider in this market. After six years, ClearLife began to search for new business opportunities and identified the equity release market as particularly promising: ClearLife could leverage its experience in handling longevity-linked assets, and there were no strong competitors in sight. Nevertheless, this small enterprise faced the risk and challenges associated with allocating its limited resources to expanding the business. Students studying this case explore the factors underpinning the attempt of an InsurTech company trying to diversify.

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"Troll" Check? A Proposal for Administrative Review of Patent Litigation

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