Privateering and Its Discontents: Marque and Reprisal, Qui Tam, Citizen Suits, and Patents
Abstract: Commentators have long debated the relative merits of private and public enforcement of the law. Environmental-law citizen suits, securities-law class actions, and qui tam litigation have been focal points for controversy about how and when to use private-enforcement rights to help execute government policy. U.S. patent law’s recently abrogated qui tam provision for false marking provides a recent example of the potential benefits and pathologies of private enforcement. Patent law also raises questions of private enforcement through debates over the extent to which third parties, including consumers, should have access to administrative or court proceedings to challenge patent rights. Most fundamentally, patents themselves can be viewed as private rights to sue—i.e., private-enforcement rights—that are granted to advance the public interest in promoting innovation. Concerns about so-called “patent trolls” or other litigation-focused patentees bring to the forefront the fact that patent holders are private parties endowed with legal authority to appropriate value generated through the activities of others. Thus, in various respects, patentees might be more properly analogized to privateers bearing letters of marque and reprisal than to real-property owners. Privateering, of course, can have benefits, particularly for governments relatively short on cash. But privateering can also lead to abuse or, at the very least, behavior not in line with overall social interests. By analogy with past and present restrictions on citizen suits, qui tam suits, and letters of marque and reprisal themselves, greater restriction or regulation of “patent privateering” might be worth considering. Contemporary and historical analogs provide guidance for the various forms that such restriction and regulation might take.
