Volume 68, Issue 1, 203-24
Patents, by their very nature, are a type of monopoly, and are so important to our country’s intellectual and technological advancement that the Founding Fathers granted Congress the power “to promote the progress of science and useful arts, by securing for limited times to . . . inventors the exclusive right to their respective . . . discoveries.” But in recent decades, that imperative has lost its footing. Mass patent aggregators, companies that compile, hoard, and assert patent rights without contributing products to the world have contorted that vision. “Patent Trolls” assemble portfolios of weak patents to corner and dominate technological spaces, crowding out innovators and demanding extortionate licensing fees from unsuspecting targets. Federal antitrust laws forbid improper accumulation and assertion of monopoly power, which is precisely how trolls’ business model operates. And yet, courts traditionally have not found a patent portfolio to constitute a “relevant market” under the Sherman Act. This Note explains why they should, and in doing so examines two cases between identical litigants, the latter of which may provide a roadmap for pursuing antitrust counterclaims against serial patent assertion entities.