Seton Hall University School of Law Professor Gaia Bernstein analyzes the rising role of end users in the patent-litigation landscape and argues that they need to be equipped with tools to defend their interests. “The Rise of the End User in Patent Litigation,” Boston College Law Review (2014 forthcoming). Bernstein is particularly concerned that current congressional proposals to shift fees in patent lawsuits do not adequately consider “the special status of end users.”

The characteristics that make end users—e.g., those customers that use patented technologies in their everyday business and are sued by patent assertion entities, or patients and physicians suing to invalidate breast cancer gene patents—vulnerable include a lack of technological sophistication and financial resources. They also “tend to become involved in the patent conflict relatively late in the life of the patent and they are typically one-time players.” The author contends that the America Invents Act failed to predict this phenomenon and does not address “the growing role of end users” because most of the new procedures are no longer available when end users become involved in patent conflicts. The article recommends that end-user status be considered as a special factor “that would weigh toward granting fee shifting where the end user is a prevailing party.”