On NPES, Holdups, and Underlying Faults in the Patent System

Abstract

This piece offers commentary on two essays in the current volume of the Cornell Law Review: James Bessen and Michael J. Meurer’s The Direct Costs from NPE Disputes and David L. Schwartz and Jay P. Kesan’s Analyzing the Role of Non-Practicing Entities in the Patent System. Schwartz and Kesan’s essay critiques Bessen and Meurer and offers some further thoughts on the role of empirical work regarding non-practicing entities (NPEs). Before I begin my substantive comments on the two pieces, I must say that these two essays, which engage each other fulsomely, carefully, and respectfully, are models of how academic debate should be conducted. They provide great value to the reader in their thoughtful responses to each other’s arguments. The pieces are each individually made more useful to the reader concerned about patent policy because they take opposing positions on a number of issues but do so in a way that illuminates both commonalities and differences in their analyses and arguments. This type of policy debate is exactly what the numerous policy disputes and empirical questions in patent law need.