Does the US Patent System Need a Patent Small Claims Proceeding?

Abstract

Patent litigation is expensive. The primary motivation for the creation of a patent small claims proceeding is to make enforcement more affordable. However, in the twenty or so years since the American Intellectual Property Law Association (AIPLA) first endorsed the idea of a small claims patent court through Resolution 401‐4, the patent litigation landscape has drastically changed. Although patent litigation costs are still high, the equities have shifted. The marketplace for patents has developed, providing more options than previously existed to monetize and assert patents. However, the cost of patent defense has not gone down, and small companies cannot afford to bring meritorious defenses. As a result, it is the high costs of defense that now presents a pressing concern. We do not believe that a small claims patent court is the answer. Nonetheless, if a small claims patent court is to be adopted, we include some principles below that should help inform such a court’s creation.This paper was submitted as a comment to the USPTO's request for comment on a small claims proceeding in March 2013.