Closing in on the Patent Troll: State Legislatures’ Role in Combatting Trolling Behavior

By WILL ROBERTS. Full Text.

In the United States, entities known as patent trolls purchase patents solely for the purpose of threatening and bringing litigation and present a significant threat to innovation and economic progress. The question is: Who will rise to the occasion and stop them? In the face of federal inaction, state legislatures have stepped in, enacting laws to combat bad faith assertions of patent infringement. This Note examines the efficacy and constitutionality of state anti-patent troll statutes, analyzing how they operate within the broader framework of federal patent law.

State legislatures have taken various approaches to address patent trolling. Some statutes have survived legal scrutiny, empowering successful challenges against patent trolls. Others face obstacles under the Federal Circuit’s stringent bad faith preemption doctrine, which imposes a high bar for proving bad faith claims of patent infringement. Despite these challenges, recent litigation demonstrates that well-crafted state statutes can survive preemption challenges and meaningfully deter patent trolls. This Note argues that states should continue to refine and experiment with anti-patent troll legislation, leveraging the benefits of jurisdictional diversity and iterative legal reform to disrupt trolling tactics. For these reasons, state-level efforts offer a promising path to protecting innovators from predatory litigation, ultimately reinforcing the patent system’s core purpose—to incentivize and reward genuine innovation.