Patent Privateering: Patents As Weapons

Author: Thibault Schrepel, LL.M., Antitrust Analyst

In the late 16th century, Queen Elizabeth I of England commissioned Francis Drake to sail for America. The Queen asked him to plunder Spanish vessels on his way there. Francis Drake became a pirate commissioned by the crown. This type of “legal” pirate was called a “privateer.” They allowed nations to attack one another without the risk of being counter-attacked, because the identity and the nationality of these pirates’ employers were kept secret.[1] Today, the spirit of those pirates is reborn. Known as “patent trolls,” these companies do not use patents for their technical aspects and are principally in the business of collecting money from others that use the patented designs or ideas,[2] and are now employed by high-tech companies seeking to use patents against their competitors.

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Ohio Considers Joining the Fight Against Patent Trolls

Author: Jon Kelly, Associate Member, University of Cincinnati Law Review

Patent trolls have become a serious headache for small businesses, and states are beginning to fight them without the federal government.  The Ohio General Assembly is currently debating House Bill 573 (H.B. 573), which would allow patent holders to sue patent trolls for “bad faith” claims.[1] Although Ohio has a strong interest in preventing patent trolls from hindering small businesses’ operations, it is uncertain whether the federal government’s exclusive jurisdiction over patent law would preempt H.B. 573 and prevent state courts from accepting patent abuse cases under the law. Considering the current state of relevant case law, however, Ohio’s H.B. 573 should survive any preemption challenge because the law does not attempt to validate patents themselves, but instead sanctions the conduct of patent trolls.

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