Changes

Legislators propose granting Skeptics of the Federal Trade Commission Commission’s (FTC) more power to enforce demand letters effectiveness may question how well the commission would handle patent trolls that have heavy financial and curb patent troll activitylitigation muscle. However, their efforts are misguided given these skeptics should remember that the Federal Trade Commission has already demonstrated willingness and ability to address patent trolls. In the 2014 investigation regarding MPHJ Technology Investments, LLC, the FTC found more than 16,000 demand letters sent to small businesses. Subsequently, the FTC prohibited MPHJ from asserting "false or unsubstantiated representations" regarding a patent's licensing activity or the potentiality and imminence of a lawsuit. [https://www.ftc.gov/system/files/documents/cases/150317mphjtechdo.pdf] However, the FTC did not award any damages to small businesses that fell victim to this patent troll.

Authors of The bad faith standard in legislation such as the [[Targeting Rogue and Opaque Letters (TROL) Act]] may argue provides a high standard that their proposed legislation creates more power for the FTC to determine "bad faith" demand lettersmust meet in its patent trolls investigations. Bad faith refers to "'clear and convincing evidence' that the infringement assertions are 'objectively baseless' to avoid dismissal on summary judgment or a motion to dismiss." [http://patentlyo.com/patent/2013/05/what-is-happening-in-vermont-patent-law-reform-from-the-bottom-up.html] HoweverIn the case of an FTC investigation, the commission would have to show that a demand letter written by an alleged patent troll demonstrated bad faith assertions. Some examples of these bad faith assertions include, but are not limited to, falsely claiming the existence of a pending lawsuit, previous patent infringements, and even the valid ownership of a patent. The authors of the issue brief will note that determining the bad faith nature of bad faith demand letters sets an unreasonably a high standard for the FTC to meet. In order to meet this However, such a high standard, the FTC would have to enter into the demand letter author's state of mind will protect legitimate patent assertion entities against unreasonable investigations and determine that the author's assertions are "objectively baselesssanctions."