Jenner & Block

A Proposal for Mandatory Patent Reexaminations, IDEA: The Intellectual Property Review Vol. 52, No. 2

In this article, Jenner & Block Associate Benjamin J. Bradford proposes a new solution to the ongoing problems caused by the issuance of “bad” patents and their enforcement by “patent trolls” or non-practicing entities – requiring a mandatory reexamination for all patents prior to their assertion in litigation.  Mr. Bradford argues that this approach (1) properly allocates resources to the 1.5 percent of all patents that will actually be asserted; (2) provides an opportunity for the accused infringers to actively participate in consideration of a patent application, which will provide additional prior art to the examiners and filter bad patents; and, (3) discourages patent trolls or non-practicing entities from asserting patents solely to extract a nominal license because of the risk that the patent would be found invalid in reexamination.