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=An Illustration of the Problem=
There's no doubt that patent trolls exist. eDekka, widely considered one of the top patent trolls, filed lawsuits against 101 companies for patent infringement in 2015, 55% of which are considered small businesses under SBA regulations. There may be more companies eDekka sent threatening demand letters to, companies that decided to settle instead of bringing the case to court. Compare eDekka to Intellectual Ventures, which had only filed 6 patent lawsuits in all of 2015. Intellectual Ventures is considered by the public to be a legitimate patent monetization firm [http://www.ipnav.com/blog/patent-assertion-entities-good-or-bad-for-innovation/]. It is clear that there is a distinct difference between patent assertion entities and patent trolls. As of December 2015, eDekka had sued over 200 companies for infringing upon the US Patent no. 6,266,674 "Random Access Information Retrieval Utilizing User-Defined Labels", a patent on a form of household remote controls. 168 of these cases were later thrown out by US District Judge Rodney Gilstrap, who wrote that the "strikingly similar lawsuits" demonstrate "an aggressive strategy that avoids testing its case on the merits and instead aims for early settlements falling at or below the cost of defense" [http://arstechnica.com/tech-policy/2015/12/in-a-first-east-texas-judge-hits-patent-troll-with-attorneys-fees/].
=Evaluation Evaluations of Proposed Solutions=
==Stricter Demand Letter Requirements==
Supporters of current legislation against patent trolls claim that the huge increase in patent litigation cases proves that patent trolls, just like eDekka, are increasing in number and prevalence. Many of them point to stricter demand letter requirements as the solution. The Innovation Act that is currently under consideration in the House demands that any claims of patent infringement must be accompanied by a very specific initial complaint letter, including information such as the name, exact model number, and description of each alleged infringement.
There are two problems with this. First, the increase in patent litigation cannot be attributed to an increase in patent trolls. Patent litigation is increasing, but only because of the uncertain nature of technological advancements and the application of patent claims to these new developments. Patent litigation surges are consistent with major shifts in technological developments. '''(Show the graph)''' There has been an increase in lawsuits, but it is proportional to the increased filings. Thus, patent trolls exist but their prevalence has been greatly exaggerated by the media.
Second, stringent demand letter requirements are not an efficient solution to curbing patent trolls. The proposed reforms against demand letters by the Innovation act are too broad; they have the potential to stifle innovation. Patent owners acting in good faith would not be able to legitimately enforce their patent rights, creating an ineffective patent system and reducing the incentives for innovation. Qualcomm Incorporated, one of the leading companies within the telecommunications sector, manages a portfolio that contains at least 13,000 US patents. As a company that relies on the current patent system to protect its innovations, Qualcomm stated that "the appropriate goal of the legislation should be to identify, and empower the FTC to address, only those demand letters that are sent in bad faith" [http://www.ipwatchdog.com/2015/03/04/demand-letter-legislation-must-be-narrowly-tailored/id=55365/].
==Empowering the FTC==
Skeptics of the Federal Trade Commission’s (FTC) effectiveness may question how well the commission would handle patent trolls that have heavy financial and litigation muscle. However, 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.
The bad faith standard in legislation such as the [[Targeting Rogue and Opaque Letters (TROL) Act]] provides a high standard that the FTC must 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] In 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 demand letters sets a high standard for the FTC. However, such a high standard will protect legitimate patent assertion entities against unreasonable investigations and sanctions.
=Recommendations on Curbing Patent Troll Activity=
Legislation that enacts sweeping reform of the patent system will not help curb patent troll activity. This type of reform only weakens patent protection for legitimate patent holders and patent trolls alike and does not deter patent trolls from engaging in abusive or frivolous litigation. The [[Innovation Act]] and [[PATENT Act]] would exceed what is needed to reduce the activity done by a small number of patent trolls by raising the costs and risks for all legitimate patent holders to enforce their patent rights in court or defend themselves from larger companies. Any legislation that would alter the current patent system should target the specific actions used by patent trolls and should not propose broad reforms that change the procedure used to enforce patents. For example, legislation like the recently proposed [[STRONG Patents Act]] gives the FTC the power to determine that certain demand letters are in "bad faith" and penalize the companies that issue these letters, but also specifically protects mistakes that were made in good faith.
Congress last passed comprehensive patent reform only five years ago, in 2011, and the unintended consequences from those changes are still appearing. [https://www.congress.gov/bill/114th-congress/senate-bill/632/text#toc-id645863c82106422dbabf0358ad52716d] Without carefully analyzing the potential effects of broad reform, Congress should not rush to combat the small amount of abusive litigation activity with sweeping changes that negatively affect everyone.
