Trolling around the Patent-Antitrust Interface: The Roots of the NPE Challenge and the Role of Antitrust in Patent Reform

Abstract

Over the past few years, a growing number of critics have complained that nonpracticing “patent trolls” threaten the American economy. These entities and their patent monetization practices have begun to generate inquiries from sources both scholarly and political. This article sets the stage for the nascent antitrust inquiry into patent trolls by reviewing the history of the patent-antitrust interface, showing the relationship between these two bodies of law and broader economic thought, and demonstrating the ways in which the—generally positive—recalibration of their interface in recent decades has created many of our current challenges. In particular, it focuses on the creation of our contemporary system of very strong patent rights beginning in the early 1980s and on the ways in which these rights have proven to be so strong that they may be invite anticompetitive abuse.