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24 Berkeley Tech. L.J. 1583 (2009)
The Trouble with Trolls: Innovation, Rent-Seeking, and Patent Law Reform

handle is hein.journals/berktech24 and id is 1593 raw text is: THE TROUBLE WITH TROLLS: INNOVATION, RENT-SEEKING, AND PATENT LAW REFORM Robert P. Merges ABSTRACT This Article analyzes the secondary market for patent rights. It defines a patent troll as a participant in this market that does not contribute to the so- cial goal the patent system was meant to serve: technological innovation. The legitimate secondary market, in which patent rights are bought and sold in ways that compensate real innovators (and also often involve the transfer of information and/or technology, in addition to the legal right), is distin- guished from the more questionable market for the settlement of lawsuits in- volving weak, outdated or irrelevant patents. The presence of willing buyers and willing sellers does not necessarily imply that social welfare is being served; at times, the legal system must shut down markets when the things being exchanged have no social value-as in the case of blackmail. The Ar- ticle reviews the prospects for corrective policies to reign in some activities in the current patent system. Political economy considerations make Congress a long shot to fix the problem, which leaves the courts, and in particular the Federal Circuit. Recent caselaw on damages is presented as a case study of a desirable Federal Circuit course correction involving the secondary market for patents. Economically rational valuation techniques applied to the ques- tion of appropriate damages for patent infringement can help to undermine the incentives to litigate, and hence the market for, patents on minor features that can be used strategically to demand large damage awards under some readings of damages doctrine. © 2009 Robert P. Merges. t Wilson Sonsini Goodrich & Rosati Professor of Law and Technology, U.C. Berke- ley School of Law; Co-Director, Berkeley Center for Law and Technology. The author thanks Joe Siino, Alex Cohen, Steve Horowitz and Lisa Mcfall, all of Ovidian LLC of Berke- ley, California, for help understanding the secondary market for patents; the editors of the Berkeley Technology Law Journal for editing help; and participants in the Searle Center Re- search Symposium on Property Rights Economics and Innovation, Northwestern Law School, Nov. 13, 2008, at which I presented an early draft of this Article.

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