Patent "Trolls" and Claim Construction

ABSTRACT This Article explores the largely overlooked relationship between claim construction and patent assertion entities (patent "trolls"), finding that claim construction problems and trends benefit patent assertion entities. First, the Federal Circuit's deep divide over the proper approach to claim construction creates uncertain patent scope, which is widely recognized as a core reason for the success of patent assertion entities. Second, case law and commentary increasingly endorse an approach to claim construction that relies on the "general meaning" in the technical field with limited reliance on the patent itself, which benefits patent assertion entities by increasing the breadth and uncertainty of patent scope. Third, the Supreme Court's recent adoption of a more deferential standard of review for claim construction in Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. increases the benefits patent assertion entities receive from filing in favorable district courts, like the Eastern District of Texas, as well as their incentives to do so. If patent assertion entities are as problematic as widely thought, these claim construction problems and trends warrant reconsideration. Current claim construction rules and trends may be warranted despite their positive impact on patent assertion entities. And other means may exist for combatting patent assertion entities without altering claim construction rules or trends. But the positive effects for patent assertion entities must at least be factored into any cost-benefit analysis of claim construction rules. Moreover, the fact that current claim construction rules and trends produce the conditions under which patent assertion entities thrive suggests that patent assertion entities may be a symptom of larger problems with claim construction doctrine. 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--both uncertainty and overbreadth of patent scope--are frequently identified as contributing to the rise and success of patent assertion entities. (7) And "claim construction is fundamental to determining a patent's scope." (8) The potential link between claim construction and patent assertion entities is, well, patent. This Article tackles the overlooked connection between patent assertion entities and claim construction. In broad strokes, the Article develops three major themes. First, problems with claim construction are significant contributors to the uncertainty and breadth of claim scope, which fuel patent assertion entities. …