Dennis over on the main page has an analysis of the WSJ op-ed which blames most of the patent system’s woes on NPEs. Five years ago, I was asked to write on the legal ethics of NPE counsel, and wrote this article “Being on the Receiving End.” This is from the intro:
The symposium invited me to speak on the legal ethical issues that face counsel who represent non-practicing entities (“NPEs”) in patent litigation as plaintiff patentees. My first reaction was that, although obviously the same common law, statutes, ethical rules, and procedural rules apply to such counsel as any other, owing to the tremendous costs of patent litigation, that counsel who represented such a “troll” necessarily would have enhanced obligations to court and opposing counsel to ensure that the suit was not brought in bad faith, nor so conducted.
Upon analysis, however, I came to the somewhat counterintuitive conclusion that, although the NPE’s counsel owes somewhat heightened duties, it is in fact the lawyer for the defendant, the accused infringer, whose duties are most implicated by the presence of an NPE in a patent suit. I arrived at that those twin conclusions based upon the following analysis and with some surprise.
Remember, I wrote that five years (probably six — published five) ago.