PATENT 'TROLLS' AND CLAIM CONSTRUCTION

Introduction Patent claim construction - the interpretation of the short paragraphs (or "claims") at the end of the patent that define the scope of the patentee's rights - is "overwhelmingly the most critical patent issue in litigation." 1 It is also one of the most problematic and controversial. As one commentator explained: Debates over whether the fundamental inquiry of patent law is broken, and what to do if it is, engross not only observers of the patent system, but also the judges of the U.S. Court of Appeals for the Federal Circuit, the appellate court entrusted with the control of patent law. 2 Patent assertion entities - also known as non-practicing entities or, more pejoratively, patent "trolls" 3 - are also one of the most important, controversial, and arguably problematic issues in modern patent litigation. The debate over patent assertion entities has divided academics, 4 led Congress to debate major patent reform for the second time in less than five years, 5 and even caught the attention of the popular media, including an eleven-minute segment on Last Week Tonight with John Oliver. 6 Yet, the intersection of what are two of the most important, controversial, and problematic aspects of modern patent litigation has been largely overlooked. Unexplored are the related questions of how claim construction has contributed to the rise and/or viability of patent assertion entities and what concerns about patent assertion entities mean for the claim construction debates. Frankly, this is surprising. Problems with patent scope ...