Paul Gugliuzza has posted a short paper on ssrn titled State Anti-Troll Statutes at the Federal Circuit. Or Not. Here is a link to the paper, and here is the abstract:
The Federal Circuit recently received notices of appeal in two cases raising questions about the constitutionality of state statutes prohibiting bad faith assertions of patent infringement. The cases could give the Federal Circuit an opportunity to clarify whether, or to what extent, state “anti-troll” statutes can be used to police how owners of federal patents allege infringement.
But, as this paper shows, it’s not clear the Federal Circuit will actually decide the cases on the merits, both because the appeals may be untimely and because one of the appeals may belong in the Ninth Circuit, not the Federal Circuit. If the Federal Circuit does issue a ruling on the merits, it may be because the preemption and federalism issues raised by the cases are too interesting and important to let doubts about jurisdiction get in the way.
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