Controlling Patent Trolling with Civil RICO

Blair Silver
11 Yale J.L. & Tech. 70

The modern patent system is incapable of policing extensive fraud. This inability to control fraudulent activity has created a system susceptible to abuse. The current remedies offered by the courts to counterbalance fraudulent conduct and trolling have not proved a sufficient disincentive to curb this behavior. Specifically, the remedies for fraud, such as inequitable conduct, have not proven capable of deterring repetitive abusers.

Civil RICO may be that solution. RICO has been an avenue pursued as a defense to patent infringement ever since RICO was extended civilly over legitimate businesses. RICO can be used as an effective deterrent to repetitive abuse of the patent system and extortionate litigation schemes that threaten large segments of industry. RICO has such an effect because of the scope of its remedies: treble damages, attorney’s fees, and investigation costs. While civil RICO should not apply where the Patent Office’s standard remedies of unenforceability for inequitable conduct compensate for individual instances of fraud, civil RICO can be used to limit repeated abuses of the system where these ordinary penalties do not work.

This paper will address the questions of why RICO deters patent abuse, where RICO stands with patent law today, what the standards for applying RICO to patent holders should be, and what the future holds for RICO and patent law.