PATENT TROLL

У монографії досліджено як теоретичні, так і практичні складові
правової охорони об’єктів інтелектуальної власності у сфері охорони здоров’я. Розглянуто положення національного і міжнародного законодавств та практики судів щодо обмеження зловживання монопольними правами інтелектуальної власності з метою забезпечення реалізації права на охорону здоров’я. Водночас проаналізовано положення законодавства та патентна практика щодо охорони об’єктів інтелектуальної власності, що
можуть застосовуватися у сфері охорони здоров’я. Запропоновано низку змін до законодавства з метою гармонізації правового регулювання правовідносин у сфері охорони здоров’я та прав інтелектуальної власності.

PLEASE CITE AS Noto La Diega G (2016) Patents on Computer-Related Inventions in India. Intel Prop Rights. S1:009. doi: 10.4172/2375-4516.1000S1-009

In India, sec. 3(k) of the Patents Act 1970 clearly excludes the patentability of computer programmes per se. For many years, the regime of computer-implemented inventions has been unclear, until the Controller General of Patents, Designs and Trade Marks (the India Intellectual Property Office) issued its Guidelines on the examination of computer-related inventions. Notably, this gave rise the civil society’s protests; indeed, there was the fear that the government was surreptisciously allowing the patentability of computer programmes per se. Therefore, the guidelines have been withdrawn and recently a new version has been published. It openly reaffirms the exclusion of the software patents and introduces a three-step test to determine the applicability of sec. 3(k) of the Patents Act to computer-related inventions. This opinion focuses the new guidance, by placing it in the context of the leading role of India in the technological and social developments revolving around the Internet of Things.

This paper was written under the orientation of Prof. Dr. Reto Hilty, of the Max Planck Institut für Innovation und Wettbewerb, under the scope of the specialized seminar "Dysfunktionale Auswirkungen des Rechtsschutzes für Immaterielle Güter".

It briefly explores the economic relevance of Patent Trolls in the US and Europe, presents probable systematic causes for their emergence, shows solutions that have been tried in both these places to avoid their acting and emergence, and, finally, presents possible defense mechanisms for companies threatened by trolling behavior.

Patent law is about creating economic incentives to innovate. It
grants the inventors of new, non-obvious, and useful technologies time-limited market exclusivity over their inventions. The idea behind this
mechanism is to make socially desirable inventive activity privately
profitable. As long as the invention withstands the patentability criteria,
the inventor’s contribution to technological progress is believed to
justify the social costs associated with market exclusivity, such as
premium prices, reduced variety, and deadweight losses. The Patent
and Trademark Office (PTO) examines patent applications and decides
whether the inventions in question fulfill these criteria.
Yet, as several scholars note, today many registered patents
embrace technologies that would likely fail to withstand the legal
patentability requirements. Several factors make the PTO prone to
issuing such “weak” patents. Notwithstanding their doubtful validity,
weak patents exert a significant market influence, allowing their owners
to stop other firms from using similar technologies or to extract fees for
such use. These practices impose significant costs on the public, without justification in terms of contribution to technological progress. Some fields of technology are overcrowded with patents, many of which are weak, creating significant risks and costs for productive firms. This has led Congress, courts, and scholars to seek solutions for reforming
patent law, mainly focusing on improving the accuracy of the PTO
examination and reducing the risks associated with patent infringement.
This Article proposes an alternative way of coping with the
phenomenon of weak patents. It identifies a basic flaw in patent law––
the asymmetry of risk allocation. The system is predisposed in favor of
patent holders and against alleged infringers. The considerable legal
uncertainty associated with patent law affects parties to patent conflicts
differently. When a firm uses a patented technology, or a similar one,
neither the patent owner nor the user knows with certainty whether the
patent is valid and whether the use is infringing. Yet, if a court finds the
patent valid and the use infringing, the user will be liable for the
damages inflicted upon the patent owner. In contrast, if the court finds
the patent invalid or the use non-infringing, the patent owner will
usually bear no liability for the damages inflicted upon the user and the
public. This asymmetry gives much bargaining power to patent owners
and invites opportunism. This Article proposes to reconsider the basic
risk allocation in patent law and to introduce liability for damages
caused by invalid patents.

One of the most pressing issues confronting antitrust in 2013 (and beyond) involves patent assertion entities (“PAEs”), previously known as patent trolls. Supporters proclaim PAEs’ benefits to “invention markets.” Critics lament extortion-like demands. Into this debate tiptoes antitrust, wondering if it can play any meaningful role. In this article, I offer six actions the antitrust agencies can take to address PAEs: (1) Offer guidance about potential harms from patent aggregation, (2) Promote transparency, (3) Prohibit transfers to PAEs that refuse to adhere to previous standards-based licensing promises, (4) Use PAEs’ distinct incentives to employ Clayton Act Section 7 when “plus” factors are met, (5) Monitor collusive activity, and (6) Consider the use of FTC Section 5. Antitrust enforcement is crucial to the protection of consumers and a competitive marketplace. Even if certain PAEs can justify some of their conduct, that does not mean that all PAE activity is immune from antitr...

In Part I, we explain several theories on why PAEs are beneficial or detrimental to the patent system. These theories outline distinct categories of patent holders who enforce their patents. Transforming the distinct categories into a coding scheme, we detail in Part II the methodology we used to generate the dataset. Part III provides descriptive statistics of 2010 and 2012 patent litigation. We discuss implications of the data, including points of disagreement between our data and the data of others, in Part IV. We also describe some areas of future study, many of which we are presently undertaking. Finally, we provide a brief conclusionCo-authored with Jay Kesan and David Schwartz

One of the most pressing issues confronting antitrust in 2013 (and beyond) involves patent assertion entities (“PAEs”), previously known as patent trolls. Supporters proclaim PAEs’ benefits to “invention markets.” Critics lament extortion-like demands. Into this debate tiptoes antitrust, wondering if it can play any meaningful role. In this article, I offer six actions the antitrust agencies can take to address PAEs: (1) Offer guidance about potential harms from patent aggregation, (2) Promote transparency, (3) Prohibit transfers to PAEs that refuse to adhere to previous standards-based licensing promises, (4) Use PAEs’ distinct incentives to employ Clayton Act Section 7 when “plus” factors are met, (5) Monitor collusive activity, and (6) Consider the use of FTC Section 5. Antitrust enforcement is crucial to the protection of consumers and a competitive marketplace. Even if certain PAEs can justify some of their conduct, that does not mean that all PAE activity is immune from antitr...