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Scott Graham writes for The Recorder, an American Lawyer affiliate.

SAN FRANCISCO — While Congress and the Obama administration look to crack down on patent troll litigation, the U.S. Court of Appeals for the Federal Circuit heard two cases last week that could put a new tool in the hands of accused infringers.

The issue is whether Microsoft Corp. and SAP can bring declaratory judgment actions for non-infringement when 72 of their customers were sued over the use of the technology giants’ software. Microsoft and SAP argue that patent assertion entity DataTern Inc. targeted their customers—but not them—because the customers would be more likely to pay nuisance-value settlements.

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