William & Mary Business Law Review


Mark Rawls


Patent litigation has become more frequent, more uncertain, and more expensive. Much of this can be traced to the rise of patent trolls asserting vague and uncertain software patents. Trolls have been derided as bringing frivolous and vexatious suits against productive companies, sapping the very same innovativeness that the patent system is supposed to encourage. Instead, companies are subject to nuisance-value suits as an ordinary course of business; for less established companies, such suits can threaten their very existence. Often, because of uncertain rules about claim construction and the granting of very broad patents, the accused infringer has no notice of any potential infringing behavior until the suit is brought or a demand letter is sent. This lack of notice—or “notice failure” as it is called—is a serious problem that disturbs the careful balance the patent system tries to achieve. In exchange for a limited monopoly in the invention, the patentee must disclose to the public what was invented. But if the public is not given proper notice of the full scope of the invention, the quid pro quo is turned on its head, favoring the patentee at the expense of the public. This Note proposes strengthening the notice requirement of the patent system. In particular, damages should be limited to behavior occurring after actual notice is given to an accused infringer where a patent troll asserts a software patent.