This paper – which can be found here – identifies similarities and differences between Europe and the US regarding the role that patent assertion entities play in patent policy and patent litigation; and seeks to determine whether the law applicable to PAEs is substantively different from the law governing patent litigation more generally.
As explained in previous posts, Patent Assertion Entities (PAEs) are firms that are in the business of patent monetization: they acquire patents from a variety of sources and then seek to collect revenue from companies manufacturing and selling products covered by those patents. More pejoratively, PAEs are known as patent “trolls”. Many commentators and policy makers have described PAE litigation as a phenomenon distinct from ordinary patent litigation. A number of studies suggest that a significant portion of recent U.S. patent litigation is attributable to PAEs, and that PAE activity is significant in Europe as well. One recent study found that PAEs accounted for approximately 19% of patent assertions between 2000 and 2008 in Germany, and 9% of patent assertions between 2000 in England and Wales.
The paper reviews first the situation in the US and then in Europe. The conclusion it reaches is that: ‘PAEs are playing an increasing role in patent litigation in both the U.S. and Europe. In response, courts have issued a variety of decisions in cases brought by PAEs. In the U.S., courts, led by the concurring justices in the Supreme Court’s seminal eBay decision, have expressed concern regarding the impact of PAEs on litigation as well as the economy more broadly. While courts have generally stopped short of enacting PAE specific rules, a number of limitations on the remedies available to PAEs have been established through pre-existing doctrines (…). In Europe, courts have been more reluctant to view PAEs differently from other patent holders. German courts, in particular, tend to follow a patentee-friendly approach, irrespective of the patentee’s business model.’
The authors also find that, when dealing with matters at the crossroads of IP and antitrust, courts rely on competition law more prominently in the EU, while patent law is employed more intensely in by US courts.
This is a good paper on the topics of patent assertion entities and the challenges they raise for courts, competition law and IP law. It will prove useful to anyone trying to understand how commercial strategies may affect the development of the law, or how different jurisdictions have each sought to deal with the developments wrought by the emergence of PAEs.