The symposium invited me to speak on the legal ethical issues that face counsel who represent non-practicing entities ("NPEs") in patent litigation as plaintiff patentees. My first reaction was that, although obviously the same common law, statutes, ethical rules, and procedural rules apply to such counsel as any other, owing to the tremendous costs of patent litigation, that counsel who represented such a "troll" necessarily would have enhanced obligations to court and opposing counsel to ensure that the suit was not brought in bad faith, nor so conducted.
Upon analysis, however, I came to the somewhat counterintuitive conclusion that, although the NPE's counsel owes somewhat heightened duties, it is in fact the lawyer for the defendant, the accused infringer, whose duties are most implicated by the presence of an NPE in a patent suit. I arrived at that those twin conclusions based upon the following analysis and with some surprise.
After providing a very brief discussion of NPEs, the article turns to legal and ethical issues. The article is organized in roughly a chronological order, analyzing the ethical and legal obligations that counsel for an NPE face in investigating, filing, and litigating a suit. In each section, it explains the applicable law and then applies that law to the context of NPE litigation, analyzing how the presence of an NPE affects the duties of counsel for both the patentee and the accused infringer.
David Hricik, Legal Ethics and Non-Practicing Entities: Being on the Receiving End Matters Too, 27 Santa Clara J. of High Tech. 793 (2011).