The Rise of the End User in Patent Litigation and Attorney Fee Shifting

Abstract

This short piece focuses on the growing role that that end users are playing in our patent system. It highlights that end users differ from competitors in that they lack technological sophistication, are often onetime players and tend to become involved in the patent dispute relatively late in the life of the patent. The paper proposes inclusion of end user status as a factor that weighs toward fee shifting, as the first in a set of procedural reforms, to address the new role of end users in patent litigation.