The Rise of the End User in Patent Litigation and Attorney Fee Shifting

Abstract

We usually think of two players in the patent system: the patentee and its competitor. Increasingly, however, end users – who are neither patentees nor competitors – are playing a significant role in the patent system. The attention of the press has recently turned to patent assertion entities who are suing vast numbers of customers using patented technologies in their everyday businesses. For example, one patent assertion entity has sued individual podcasters, including the Comedian Adam Carolla. End users were also principal players in some of the recent patent cases before the Supreme Court. In Bowman v. Monsanto, Monsanto sued a farmer for re-using its patented seed technology. End users also appear as patent challengers: in Ass’n for Molecular Pathology v. Myriad Genetics, patients and physicians sued to invalidate breast cancer gene patents. And patients and drug stores repeatedly challenge pay-for-delay agreements between patentees and competitors, claiming they undermine patients’ interests in access to generic drugs. This is only the beginning: end users are likely to become even more prevalent in patent litigation, as 3D printers become more popular, making it more likely that an individual or a small business will make an infringing item that will expose them to patent liability. All of this begs the questions what is an “end user” and how well is patent law suited to deal with this new player? In The Rise of The End User in Patent Litigation, which was published in the Boston College Law Review, I define end users as people and companies that use a patented technology for personal consumption or in their business. I emphasize that