Speaking at the Extraordinary General Assembly of MAPPING yesterday (on which see this and subsequent posts on the IPKat), it was my task to introduce a discussion of the role of intellectual property in Europe, within the context of internet governance, privacy, online security and surveillance. I mentioned various issues in my 45 minute talk, mainly but not exclusively relating to copyright and trade marks, but also patents in the context of Amazon's controversial one-click online shopping patent.
During the subsequent discussion I was taken to task for not mentioning the threat of patent trolls. My feeling was at the time, and still is, that while the phenomenon has manifested itself to a large extent in the United States, where the homogeneity of the domestic market and the existence of a single patent to cover it, as well as the infrastructure of federal patent litigation, make troll-based business models which are both attractive and lucrative, the current legal, cultural and economic infrastructure is more fragmented and makes it less easy for such business models to succeed. I also believe that, to the extent that trolling depends on the making of unwarranted demands of licence payments on pain of bringing an infringement action, remedies already exist at national level which address this sort of behaviour.
It is easy for someone who is a regular commentator, public speaker and alleged thought-leader to lead himself to believe that what he says is right and that everyone agrees with him, so this blogger thought he'd ask readers of this blog what they think. Does the patchwork of pan-European and national law in Europe, together with its still-divided nature, make the continent a less-than-fertile territory for patent trolling, or is this view outdated or just completely untenable? Do let him know!
9 comments:
The slew of IPCom and Rovi cases in the UK Patents Court over the last few years certainly suggests that there is a degree of trolling going on. How that compares to the US I do not know.
Anonymous 15:35, if there hadn't been a hugely publicized debate about NPEs in the U.S. in the first place, would anyone have picked out the IPCom and Rovi cases and said there was anything sinister about them? And does their outcome suggest a problem that the system cannot deal with in a perfectly adequate way?
the timing of this post was interesting given this development: http://www.nytimes.com/2014/05/22/business/legislation-to-protect-against-patent-trolls-is-shelved.html?_r=0
Thanks so much for this link, Ron. Presumably it's the solution, rather than the problem, that has gone away in the U.S.
I suspect that triple damages for willful infringement and the uncertainty of trial by jury also play a role in the reluctance of companies to challenge NPEs in the US. In any case, the solutions proposed so far are perhaps the wrong way of tackling the problem. A patent is just a form of property. Few would suggest that a landowner not making use of a plot of land should be prevented from stopping others from trespassing on it. More rigorous examination and cheaper/easier ways to seek revocation of invalid patents would perhaps prove better at curbing the problem.
This is a bit old now, but you might find it useful: http://www.lse.ac.uk/collections/law/wps/WPS2012-13_Mcdonagh.pdf
I believe it's just the tremendous costs of litigation, coupled with high awards and complete uncertainty of outcome which exacerbates the problem in the United States. Given that judges can now be expected to bend over backwards to punish perceived ip exploiters, I expect there will be a reduction of use of this business model.
I think your observation is correct, for now. There are several factors that make the PAE model less efficient in Europe. The fragmented markets and court are a primary factor. However, the Unified Patent Court, coming in 2015, will remove this factor. I think the PAE model will become more prevalent in Europe generally.
Do not forget that in some EU countries and France is one of them the losing party may have to pay the costs of the winning party . Those costs are never the full costs borne by the winning party but may be substantial ( from a French point of view).
This is also one of the reason why patent troll were not as active in Europe as in the US.
The recent decision of the US Supreme Court on costs may change the landscape for the patent troll in the US.
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