by Dennis Crouch
Professor Colleen Chien has published an unfortunate new Wall Street Journal essay titled “The Best Way to Fight a Patent Demand May Be to Do Nothing.” Chien’s factual bases appears spot-on: a large and increasing percentage of companies are refusing to even respond to patentee correspondence. The unfortunate aspect of the Chien’s essay is her suggestion that this really may be “the best way to deal with a patent demand.”
To be clear, Chien notes that a company will likely need to respond to letters by a “larger competitor,” a “patent bully,” or a well funded patent troll. Those entities are apparently serious and are ready and willing to use the court system to achieve their goals. What is left-over are patentees who lack the fortitude or desire to pursue a long court battle — especially where the potential damage award is less than six-figures. Those patentees are safe to ignore.
An unfortunate aspect of Chien’s suggested triage system is that it does not focus on merits – is the patent actually being infringed; is the patent valid? Rather, the focus is simply whether the patentee has the wherewithal and propensity to sue and whether the triaging-company can slide under the radar. Professor Chien’s suggested best practice approach moves us further away from any respect for patent rights and toward a more extreme system of litigation enforcement.