Turn—patent trolls—overturning eBay would open the litigation floodgates

Joe, senior policy analyst at EFF, where he works on patents, encryption, platform liability, and free expression online. "Entrepreneurs Tell USPTO Director Iancu: Patent Trolls Aren’t Just “Monster Stories”", Electronic Frontier Foundation, 2/14/2019. https://www.eff.org/deeplinks/2019/02/uspto-director-iancu-patent-trolls-arent-just-monster-stories LJS

Patent trolls aren’t a thing that happens once in a while or an exception to the rule. Over the past two decades, troll litigation has become the rule. There are different ways to measure exactly what a “troll” is, but by one recent measurement, a staggering 85 percent of recently filed patent lawsuits in the tech sector were filed by trolls.¶ That’s almost 9 out of 10 lawsuits being filed by an entity with no real product or service. Because the Patent Office issues so many low-quality software patents, the vast majority of these suits are brought by entities that played no role in the development of the real-world technology they attack. Instead, trolls use vague and overbroad patents to sue the innovators who create products and services. This is how we end up with patent trolls suing people for running an online contest or making a podcast.¶ Three Steps Forward, Two Steps Back¶ The news isn’t all bad. Reformers have made substantial progress in the fight against patent trolls. A string of positive Supreme Court decisions, beginning with the 2006 eBay v. MercExchange decision, and going on through 2014’s Alice v. CLS Bank ruling, have made it feasible to fight trolls in court. Meanwhile, the America Invents Act created a useful new process for challenging bad patents right in the patent office—the inter partes review. ¶ Supreme Court decisions have made it harder for patent trolls to rope defendants into remote, inappropriate venues like the Eastern District of Texas; easier to award fees against patent owners who abuse the system; and perhaps most importantly, the Alice decision has made it easier to knock out bogus software patents more quickly.