Apple filed public comments with the Federal Trade Commission, making their case for change. From their letter:
No firm has been targeted by PAEs more than Apple. Apple has litigated against PAEs 92 times in the past three years alone, and has received many more demands. Its experience confirms what many others have documented: although PAE activity is not necessarily harmful in theory, far too many PAEs exist only to extract undeserved royalties. As both a market leader and the PAEs’ favorite target, Apple has a special interest in policies that discourage this behavior. Apple thanks the Commission for undertaking this important study, and respectfully submits these comments on the Commission’s proposal.
The linked article brings up an upcoming Supreme Court case over when fees should be awarded in patent cases. In an amicus brief for that case, Apple says:
Apple’s success sometimes leads it to the courtroom to litigate patent disputes. Apple has seen these disputes from both sides — one day taking on a copycat and the next defending itself against a patent holder alleging infringement. Apple therefore has a strong interest in the U.S. patent system and the balance that it strives to strike between promoting innovation and fostering competition.
Recent phenomena, most importantly the meteoric rise of the patent assertion entity (“PAE”), have disrupted that balance. PAEs do not invent, manufacture, or sell any product. Many of them do nothing more than acquire vague patents, and then use litigation or the threat of litigation to negotiate royalties that are far larger than what the patents warrant. The patent assertion industry has exploded over the past decade.
Apple is the firm most targeted by PAEs. Over the last three years alone, Apple has faced a PAE’s allegations of patent infringement in 92 separate matters. 57 of these cases have been resolved. Apple has rarely lost on the merits. But victory figures as small consolation, because in every one of these cases, Apple has been forced to bear its legal fees. This reality is the lifeblood of the patent assertion industry, because the threat of fees often forces an undeserved settlement. Indeed, the opening line of many negotiations is some form of, “What we’re asking for is less than it will cost you to litigate this case to judgment.” It should come as no surprise, then, that despite its success in litigating the merits, for business purposes Apple has agreed to a settlement in 51 of the 57 closed cases. The remaining 6 cases are either outright victories or instances in which the plaintiff voluntarily walked away from its suit before judgment. Each of these cases involved a significant investment of fees and effort by Apple.
Really hoping Apple has some success here. We need to fix this system.