The Fight Against “Patent Trolls:” Will State Law Come to the Rescue?

January 30, 2014

Patent trolls are companies that do not invent or manufacture any products. These companies acquire patents for routine activities, such as scanning documents to email. They then send out thousands of letters to potential infringers, demanding exorbitant fees for a license to engage in the patented activity, and threatening suit if the recipient fails to pay for a license. Vermont has taken patent trolls head on—its Attorney General filed suit against a patent troll under state consumer protection law and the Vermont legislature passed a law this year punishing companies that assert patent infringement in bad faith. Patent law, however, is traditionally a federal matter and, thus, federal law may preempt Vermont’s efforts. This Recent Development argues that Vermont has avoided preemption by tailoring its efforts to conform to federal guidelines. Although Vermont has avoided preemption, this Recent Development goes on to argue that Congress should take action against patent trolls, as Congressional action would not be subject to preemption. Additionally, nationwide legislation would be a more efficient way to combat patent trolls, as opposed to a state-by-state effort.