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55 B.C. L. Rev. 1443 (2014)
The Rise of the End User in Patent Litigation

handle is hein.journals/bclr55 and id is 1449 raw text is: THE RISE OF THE END USER IN PATENT LITIGATION GAIA BERNSTEIN* Abstract: The patent system focuses on the actions of two players: the patentee and its competitor. It assumes that the competitor will represent the interests of the end user. But, end users are increasingly becoming significant players in the patent sys- tem, with their interests sometimes diverging from those of competitors. Attention has recently turned to Patent Assertion Entities (PAEs)-also known as patent trolls-who are suing vast numbers of customers using patented technologies in their everyday businesses. Yet, end users were also principal players in some of the main recent patent cases before the U.S. Supreme Court. In Bowman v. Monsanto Co., Monsanto sued farmers for re-using its patented self-replicating seeds. In As- sociation for Molecular Pathology v. Myriad Genetics, patients and physicians sued to invalidate breast cancer gene patents. And, patients and drug stores repeat- edly challenge pay-for-delay agreements between patentees and competitors, claiming they undermine patients' interests in access to generic drugs. The drafters of the America Invents Act (the AIA) intended the legislation to catch up with the changing patent landscape. Yet, the AIA did not predict and is largely ill-equipped to address the growing role of end users. The AIA addresses the needs of small entities, mainly, by adding procedures to challenge patents in the United States Patent and Trademark Office (PTO), providing a cheaper and faster forum for challenging validity. However, end users are different from small techno- logical competitors. End users lack technological sophistication, they are often one- time players and tend to become involved in the patent dispute relatively late in the life of the patent. The AIA's novel PTO procedures are largely unsuitable for end © 2014, Gaia Bernstein. All rights reserved. * Professor of Law, Seton Hall University School of Law. I would like to thank for their very helpful comments and suggestions: David Abrams, Christopher Beauchamp, Andrew Beckerman-Rodau, Chris- topher Bucaffusco, Michael Burstein, Michael Carrier, Thomas Cooter, Rochelle Dreyfuss, Jeanne Fromer, Megan La Belle, Brian Love, Andrea Matwyshyn, Orna Rabinovich-Einy, Jason Rantanen, Daniel Ravicher, Amit Solomon, Philip Swain, Charles Sullivan, Harry Sunder, David Schwartz, Felix Wu and Tal Zarsky. I would also like to thank the participants of the Tri-State Intellectual Property Col- loquium at the New York University School of Law, the ABA-IPL First Intellectual Property Scholarship Symposium at the 29th ABA Annual Intellectual Property Conference, the Cardozo School of Law Intel- lectual Property and Information Law Colloquium, the Intellectual Property Scholars Conference at the Cardozo School of Law, the Patcon4 Conference at the University of San Diego School of Law, the Haifa Faculty of Law Technology and Law Colloquium and the Seton Hall University School of Law Summer Brownbag. For excellent research assistance I would like to thank Ashley LeBrun, Isabelle Fabian and Julie Rich. This Article was generously supported by the summer research stipend of the Seton Hall University School of Law. 1443

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