Patent Asserting Entities (“PAEs”), often compared with the mythological troll who lurks under a bridge it did not build, demanding payment from anybody who wants to pass, are criticized for their business model as a type of “holdup” on innovation. They wait until a practicing entity infringes, then demand payment for technology that they did not create. Their critics charge PAEs with stifling innovation, crippling research and development, and chilling healthy competition. And although the courts, Congress, and government agencies identified PAEs as an issue since their recent emergence, current patent laws are ill-suited to limit PAE litigation and combat trolling tactics. Taking advantage of the weaknesses in the United States patent system, PAEs command the attention of alleged infringers as a serious threat to product companies and startups.

This Comment distinguishes PAEs from Non-Practicing Entities (“NPEs”), focuses on PAEs and their effect on innovation and the public, explains that PAEs are more harmful to public interest and rightly deserve their “troll” moniker, and suggests a solution to limiting their influence. With public interest as the underlying factor, this Comment proposes an affirmative defense—a combination of ideas and themes inherent in patent law with existing doctrines—to extinguish exclusive rights of PAEs by expanding the current definition of inequitable conduct.

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