Supreme Court seems reluctant to blow up a key weapon against patent trolls

Justices Sonia Sotomayor, Ruth Bader Ginsburg, and Justice Elena Kagan in 2010. All three seemed skeptical of the Oil States argument. (credit: Talk Radio News Service)

In Supreme Court oral arguments on Monday, justices seemed skeptical of arguments that a patent office process for challenging patents runs afoul of the Constitution.

The issue matters because the challenged process—which was created by the 2011 America Invents Act—has emerged as a key weapon against patent trolls wielding low-quality patents. Overall, defending a patent lawsuit can easily cost millions of dollars. By contrast, the new process, known as inter partes review, allows a patent to be invalidated for a sum in the low six figures.

That's bad for patent holders—especially those with low-quality patents—because companies accused of infringing a patent can attack the patent before the Patent Office rather than going through the much more expensive route of defending themselves in court.

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