Patent troll

from Wikipedia, the free encyclopedia

Patent troll (also “patent troll”, “patent hunter”, “patent shark” or “patent freebooter”) is a derogatory term for people or companies (property right enforcement companies) who use patent rights in an inappropriate manner in the opinion of some market participants. In this context, attorneys are accused of abusing these patent laws in order to generate unjustified income with the support of the courts after the relaxation of US patent laws in the 1980s. Acquiring patents without ever wanting to use the patented technical invention is problematic if there are legitimate interests [example hormone Ru-486 ] to use a right. In the event of misuse of a non-practicing entity (NPE), circumstances arise that actually make the exploitation intent appear unfair, such as the assertion of so-called trivial patents , which are based on inventive activity, cf. § 4 PatG (Germany) or Art. 56 EPC or even novelty, § 3 PatG (Germany), Art. 54 EPC is often already questionable (for non-legal experts).

Definition and etymology

Patent trolls can use patent law to collect license fees, some of which are unusual but legal . For decades companies have been founded that do not manufacture their own products and whose workforce is only recruited from lawyers. Since many companies apply for patents with very broad claims for purely defensive reasons, some of the patent thieves strike with collected capital when such companies become insolvent. Their patents are then bought up and used. For the first time publicly the term patent troll in the nineties by the then Intel used solicitor (Deputy General Counsel) Peter Detkin that it to break, as a co-founder of Intellectual Ventures now as "plaintiff I do not like" (Engl .: , plaintiff I don't like ) relativized. The term "troll" was not created by Detkin, but by his colleague Anne Gundelfinger. After Intel had been sued for defamation (libel) by a litigator for using the term patent extortionist , the Intel legal department looked for a non-defamable term for the increasingly common companies and individuals who, at best, focus on the exploitation of patents specialized without selling products in the market themselves. Delkin held an internal competition and Gundelfinger's proposal, Troll , won.

“Patent troll” is a complex term. Larger companies are also suspected of enforcing their patents like patent trolls against other companies. In essence, however, companies (NPEs) without corresponding products of their own are called that, which may have come into possession of a patent in a variety of ways.

  • Enforces patents against possible infringers without having a corresponding product or using such a process;
  • Enforce patents without obtaining any through research; or
  • Is only interested in asserting its own monopoly.

As early as 1993, the term was used in the USA to describe the aggressive action taken by certain small companies there. Damage caused by the state is known in economics as fighting for income without performance through behavior aimed at " political pension ".

The term is also used in connection with trivial patents . Such patent trolls try to acquire broadly and vaguely worded patents that enable disproportionately high income from license fees. This makes it easier to expand the patent to areas of interest later on, since in retrospect it is psychologically easier for all viewers, including and especially the judges, to “read into the subject of infringement” an unclear issue. Another possibility is to deal with quite complex issues, e.g. B. the control engineering, to have patent protection and then to confront others with it. These can then defend themselves appropriately only at high costs and often prefer a licensing arrangement as a lesser evil.

Another variant is to proceed from a bundle of numerous patents, with the same intention and - as expected - a similar deterrent effect on the attacked. With these patents, small and medium-sized companies that make the inventions described in the patents independent or use these technologies are embroiled in lengthy legal disputes.

Increasingly, patent trolls also question companies at trade fairs or who pretend to be interested in cooperation and analyze products that have just been launched on the market. The troll then applies for a patent for any innovations that are identified. This method is also used by direct competitors. Corresponding subsequent US filings pose a particular problem for internationally active companies, since US patent law only recognizes a limited concept of novelty and acts abroad do not conflict with US patents. In the rest of the world, such illegally obtained patents are usually only used after several years, especially against the actually entitled company, as the company is then often no longer able to prove its older rights due to the destruction of documents and fluctuation of employees.

The Californian one-man company Eolas sued the software manufacturer Microsoft in 2003 and won US $ 521 million. In the summer of 2004 the first instance ruled in favor of Microsoft, Eolas then appealed, and at the beginning of March 2005 the appeals court referred the case back to the first instance.

The placement and exploitation of so-called submarine patents is also known as patent trolling .

According to a 2011 study by Boston University , patent trolls are said to have caused damage totaling $ 500 billion to US companies between around 1990 and around 2010. This value was determined from the loss of company values ​​(measured in terms of stock exchange prices) associated with patent infringements.

The German company IPCom specializes in patent suits against cell phone companies such as Apple , HTC and Nokia .

Criticism and attempts to solve problems

The then US President Barack Obama criticized the well-known excesses of the patent trolls on February 14, 2013 in a Google+ hangout : “ They don't actually produce anything themselves, They're just trying to essentially leverage and hijack somebody else's idea and see if they can extort some money out of them. ”() The Leahy-Smith America Invents Act (September 2011) was intended to be a step against undesirable developments in US patent law. In 1997, RiceTec , a seed company in Texas, obtained a far-reaching patent on Indian Basmati rice, which is enforceable under an agreement on trade-related aspects of intellectual property rights ratified in 1995 .

Legal reference in Germany

The German patent law has also known defense instruments against patent trolls for a long time, such as Sections 144 and 145. The former tries to establish economic equality of arms, the latter at least regulates the problem of chain lawsuits, in which one lawsuit follows the other.

Extract from the German Patent Act :

§ 144 PatG – – Streitwertherabsetzung
(1) …, so kann das Gericht […] anordnen, daß die […] Gerichtskosten sich nach einem ihrer
Wirtschaftslage angepaßten Teil des Streitwerts bemißt. Die […] begünstigte Partei die Gebühren
ihres Rechtsanwalts ebenfalls nur nach diesem Teil des Streitwerts zu entrichten …
§ 145 PatG – Zwang zur Klagekonzentration
.. wegen derselben […] Handlung auf Grund eines anderen Patents nur dann eine weitere Klage erheben,
wenn er ohne sein Verschulden nicht in der Lage war, auch dieses Patent in dem früheren Rechtsstreit
geltend zu machen.

However, patent trolls are formally within the legal regulations. The "theft of ideas" described above is not a criminal offense either, but can only be tackled through a patent vindication suit, whereby in the case of a patent family, the person entitled may have to sue in each country. Compared to the low financial risk of the patent troll, the effort of the entitled person is disproportionately high. The BVerfG already pointed out the problem that “only a small fraction of the registrations prove to be usable for industrial use” in 1974 in “Disclosure, Patent Law” 1 BvL 5/70.

See also

literature

Web links

Individual evidence

  1. phonetel.com ( Memento of the original from April 21, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF) @1@ 2Template: Webachiv / IABot / www.phonetel.com
  2. Christoph Ann: From patent sharks, trolls and suggestions for pest control . In: GRUR . No. 8 , 2009, p. XI .
  3. Joff Wild: The real inventors of the term “patent troll” revealed . IAM Magazine, August 22, 2008, iam blog
  4. Alexander Poltorak: On 'Patent Trolls' and Injunctive Relief. (No longer available online.) In: ipfrontline.com. May 12, 2006, archived from the original on May 18, 2006 ; Retrieved April 24, 2009 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.ipfrontline.com
  5. ^ EPO Scenarios for the Future, 2005, Glossary. (PDF; 6.2 MB) European Patent Office, accessed on July 27, 2007 .
  6. ^ Morag Macdonald, Beware of the troll . (No longer available online.) The Lawyer, September 26, 2005, archived from the original September 27, 2007 ; Retrieved July 27, 2007 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.thelawyer.com
  7. ^ Danielle Williams, Steven Gardner: Basic Framework for Effective Responses to Patent Trolls. (PDF) North Carolina Bar Association, Intellectual Property Law Section, April 3, 2006, accessed March 23, 2018 .
  8. Dennis Crouch: Patently-O. May 12, 2006, accessed July 26, 2007 .
  9. Ansgar Ohly: “Patenttrolle” or: The patent law injunction under reservation of proportionality? - Current developments in US patent law and their significance for the German and European patent system . tape 10 . GRUR Int, 2008, p. 787-798 .
  10. Markus Reitzig, Joachim Henkel, Christopher Heath: [On Sharks, Trolls, and Their Patent Prey - Unrealistic Damage Awards and Firms' Strategies of “Being Infringed”]. PDF, October 2006.
  11. ^ Willi Schickedanz: Patent infringement through the use of protected components in complex devices and the role of patent trolls . In: GRUR Int. No. 11 , 2009, p. 901-907 .
  12. Patent trolls cause billions in damage winfuture.de of 23 September 2011.
  13. Business.time.com and news.cnet.com
  14. news.cnet.com. Retrieved July 12, 2013.
  15. ^ Theft of cultures . In: Der Spiegel . No. 47 , 2001 ( online ).
  16. Steven Rubin: Hooray for the Patent Troll !. ( Memento of the original from March 30, 2009 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. In: IEEE Spectrum. 3/2007. @1@ 2Template: Webachiv / IABot / www.spectrum.ieee.org
  17. BVerfG "Disclosure, Patent Law" 1 BvL 5/70 in GRUR 1974, 142.