Comments for Will ‘Patent trolls’ soon appear on the European market?

Coudray Morgane
That's an interesting question : Does the unified patent package seriously reinforce the risk of ‘patent trolls’ landing in Europe ? First let me talk about this unified patent package, what is that scary thing ? Well, it's the new European legislation about patent. It include a unified patent which would be applicable on 26 countries and a unified patent juridiction…
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That’s an interesting question : Does the unified patent package seriously reinforce the risk of ‘patent trolls’ landing in Europe ?

First let me talk about this unified patent package, what is that scary thing ? Well, it’s the new European legislation about patent. It include a unified patent which would be applicable on 26 countries and a unified patent juridiction which would be the only court competent to rule on any patent case. A change in our legislation that could be an invitation for what’s called the patent “trolls”. They are usually described as “companies that do not invent anything but instead purchase patents and use them to sue big companies with deep pockets” (Paul Belleflamme, “What to think of a patent troll ? The Return).
It’s a phenomean more usual in the United States but several companies are afraid that our new legislation could also threaten them in the European Market. That’s why they wrote the open-letter mentioned in the Alain Strowel’s article.

It looks like a simple question because obviously, the patent “trolls” will go where the legal environnement is conducive to their shenanigans. Peoples who thinks that the new european legislation will attract the patent “trolls” give as first argument that it will be possible to obtain a legal injunction valid on a large market, which will give more power to the patent “trolls” and one more pression means ; when others answers that this threat already exist. The secund argument is that 60% of cases are treated bu a jury in the United States. This fact increase the uncertainty about the outcome of the trial. So, it’s easier for the “trolls” to convince the compagnies to settle if they’re not sure to win. While in Europe, the cases are judged by professional judges, it decreases the uncertainty. A third argument is advanced about fees. In the United States, the damages and interest are higher than in Europe, an other way o say that “trolls” have more to gain if they win. In return, in Europe, the cost of legal defense can be very high. Another pressure means given to the “trolls” to force the companies to settle if they don’t want to spend millions in a legal procedure.

All these arguments show us a legal environnement more profitable to the “trolls” in the United States. At least for now. Because we must confess that the new legislation will maybe provide us a better protection on some points but also give good incentives to the patent “trolls” to come on the european market.

And that’s why several US and European companies had written an open-letter in order to submit some changes for the unified patent court. They raised a weighty argument about bifurcation. It’s a legal procedure which make it possible for a patent owner to make judged his patent in two differents courts. One will rule about the validity of the patent and the ther on the question if the patent protection was violated. The problem they raised is that if the second juridiction says that the protection was violated, then the owner patent can ask for an injonction which will prevent the product from being distributed until the first juridiction rule on the validity of the patent. And it will be an injunction valid on the 26 countries concerned by the new legislation. For the open-letter’s writters, it would give an excellent opportunity for the patent “trolls” to almost blackmail the companies. Because this compnies wouldn’t want to pay a long and very expensive procedure, especially not if they’re afraid to being banned from distributed their product during this procedure. And so, they will settle out of court and pay some excessives redevances to the “trolls” and sometimes for very weak patents, just because this injunction will make them loose too much money.

In conclusion, we showed that the US legal environnement was more profitable to the “trolls” than the European one, at least for now because the new legislation will probably gve them good incentives to come on the European Market. I think that the worries of the 16 compagnies that wrote the open-letter are funded. Some changes had to be made to fight against the patent “trolls” and several ideas were raised like increasing transparency regarding the NPEs which file those court actions or reforming the law of evidence. But maybe we should go back further and ask about how patent are granted ? Is the criterias good enough ?

That’s a lot of questions to answer…

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Cécilia Busardo
The patent initial goal is quite easy: to protect creativity and innovative ideas while encouraging the innovation around the world. Companies tend to use this way to protect their ideas so they can exploit them without fearing to be copied by competitors. However, every good system and ideas have their bad sides. We progressively assist to the emergence of “patent…
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The patent initial goal is quite easy: to protect creativity and innovative ideas while encouraging the innovation around the world. Companies tend to use this way to protect their ideas so they can exploit them without fearing to be copied by competitors.
However, every good system and ideas have their bad sides. We progressively assist to the emergence of “patent trolls”: they can be defined as “companies that acquire patent portfolios not to exploit them but to negotiate licenses, potentially under the threat of an action for patent infringement”. (1)
As an example, in September 2011, Innovatio IP Ventures (an American company) has sued six hotel’s owners for patent infringement. The reason? The hotels were just proposing free Wi-Fi to customers (Wi-Fi requires thirty-one patents owned by Innovation IP Ventures). (2)

Different arguments are told about these patent trolls : some are in their favor, other aren’t. But largest companies in the world are totally against them because they are the ones principally attacked by patent trolls. For example, between 2008 and 2011, Apple and Hewlett Packard have respectively been attacked 115 and 113 times : that shows us the not negligible importance of these attacks, without even taking in consideration all the costs it generated. Problem is that this kind of actions is totally legal: if these trolls can get these patents, it is because they have the skills and the authorization to do so.

In Europe, however, the threat is also growing. Studies have shown that this scourge has increased ten-folds from 2005 to 2015.(3)
The Unified Patent Court (4) previews two different ways to fight against patent trolls: one can “allow plaintiffs to have a quick ruling”(bifurcation) and the other “permits patent holders to bar unlicensed products containing their technology from the market” (injuction)
From my point of view, the UPC (Unified Patent Court) and its methods could avoid the spread of patent troll in the EU. We should not forget that patent’s reglementation is more complicated in European Union: EU’s judges are specialized in this field while US’s judges aren’t. As a consequence, getting a patent is much more complicated than in the US.
And finally, the injunction and bifurcation mentioned by the UPC are also great ways to prevent patent trolls. As a conclusion, in my opinion, patent trolls are still a threat for us (considering their increase these last 12 years) but we have in our possession all of the means that could contain their emergence.

(1) (https://www.ipdigit.eu/2013/11/will-patent-trolls-soon-appear-on-the-european-market/).
(2) http://www.journaldunet.com/economie/magazine/patent-trolls.shtml
(3) http://patentblog.kluweriplaw.com/2017/04/23/industry-group-unified-patent-court-hands-patent-trolls-a-powerful-weapon/
(4) https://docs.google.com/file/d/0Bw8Krj_Q8UaEd3U1dUJ3SVp6LTQ/edit

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Paolantoni Nolane
In the early 2000s, Phil Condit, CEO of Boeing Company stated that 80% of Boeing's capital consisted of intangible assets. We therefore see the importance of valuing intellectual property titles, and the economic power they can represent. In addition, over the last two decades, the number of patent applications has grown significantly more than the number of R & D activities.…
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In the early 2000s, Phil Condit, CEO of Boeing Company stated that 80% of Boeing’s capital consisted of intangible assets. We therefore see the importance of valuing intellectual property titles, and the economic power they can represent.

In addition, over the last two decades, the number of patent applications has grown significantly more than the number of R & D activities. The number of applications tripled in the 1990s before the United States Patent and Trademark Office (USPTO), from 45,000 in 1993 to 150,000 in 1998.

Faced with this development, a new type of behavior appeared in the United States, the “patent trolling”, trolling companies being called “patent trolls”, “non-practicing entities “, “non-manufacturing patentee” or “patent dealer”.

Whatever its etymological origin, the patent troll represents a malicious, greedy being, a parasite diverting the object of the patent right for speculative purposes. This obviously does not make it the most beloved of the actors in the world of industrial property.
This metaphor was then made popular in July 2001 by Peter Detkin, co-director of Intel’s Intellectual Property department, in an article written by Brenda Sandburg.

Whatever the name given to them, it is not easy to define patent trolls correctly, since this term has been used many, many times over the last few years.

Nevertheless, there are characteristics common to all these companies practicing this process of “patent trolls”. They are non-manufacturing, non-manufacturing entities that employ mainly lawyers, who acquire patents but do not invent patented technology. Their patent portfolios come exclusively from purchase to independent inventors or companies, often in liquidation, thus acquired at a very low price.

What makes patent trolls so much criticized entities is undoubtedly the fact that their action is constantly linked to blackmail. The threat of a lawsuit leads many companies, convinced not to be a counterfeiter, to take a license, a litigation representing too much financial risk.

This phenomenon, born in the United States, does not seem to be able to develop in the same way in the other legal systems, in particular with regard to the rules relating to patents in Europe.

The US patent system, combined with the patent office’s flaws, court costs, and procedural rules, makes the United States a breeding ground for this kind of behavior. This country has also been a forerunner to abuses with “submarine patents”, a practice that can be considered as the ancestor of patent trolling.

In addition, patent trolls operate in certain sectors only, where the number of patents is considerable. This is the case of IT and new technologies.
Faced with this unflattering description of a practice that seems to be the work of people of little virtue, it should be qualified.

The practice of patent trolling may be immoral, unjust, ethically wrongful and in total contradiction with the purpose of the patent right, but the fact remains that it is most legally total. A troll may be stamped with the seal of immorality; it remains the owner of a title issued by a competent office.

Some authors try to downplay the seriousness of “patent trolls” by claiming that NPEs (Non-Practicing Entities) would not have the bad role they want to give them. According to them, they would be a transitory phenomenon, particularly due to the bursting of the internet bubble, which has led many companies to bankrupt and sell their intangible assets, including patent trolls.

After putting this notion of “trolling” into perspective, the question is: ” Does the unified patent package seriously reinforce the risk of landing patent trolls in Europe? ”

First of all, we will highlight the emergence of the patent troll in Europe and see its effect on the European market.
Indeed, several companies operating on the NPE model are already established in Europe. The most important of these is called SISVEL. This Italian company collects a large number of patents in the field of high technologies and offers licenses to large manufacturing companies. Many licenses have already been granted by Sisvel, including the company Thompson for a patent on technology.

In addition, a famous case recently opposed the company IPC & co, a German “patent troll”, facing the Finnish company Nokia. This NPE claimed Nokia 12 million € for repairs for the infringement of one of its patents. The patent had been acquired from the Bosch company in 2007, then a lawsuit was filed in Germany against Nokia, one of the companies refusing to take license. A complaint was filed by Nokia before the European Commission for abuse of dominant position.

The trial is still ongoing, but whatever the outcome, it demonstrates the presence of NPE in Europe, operating exactly on the same principle as their American counterparts. They also have huge budgets often brought by unscrupulous investment funds.

However, it is possible to establish the conclusion that the impact of “patent trolls” will not be as marked as in the United States.

This can be explained first of all by the territoriality of the rights to avoid a conviction in all member countries of the EPC. Indeed, the European patent is not a unitary title, so, if it provides protection in all European countries, its defense must be before the judge of patents specific to each state.

Indeed, he will have to carry out several actions in different courts if he wishes to have a ban on all or part of the territory protected by the European patent. In addition, the cost procedures and their results vary greatly depending on the country of the application. The same goes for a national patent, the patent troll cannot obtain a conviction for a market as large as that of the United States.

In addition, the remuneration of lawyers cannot be based on the amount of damages awarded by the judge. This makes Europe less attractive to NPEs (Non-Practicing Entities) because it is a smaller source of income than the United States.
The appearance of a unitary patent would, however, call this system into question.

Also, the remuneration of lawyers cannot be based on the sum of damages awarded by the judge. This makes Europe less attractive to NPEs as it represents a smaller source of revenue than the United States.

Europe also has an unknown system of the United States, that of the “loser-pays”.

In France, according to Article 700 of the new Code of Civil Procedure, the winning party to a lawsuit may request the reimbursement of these costs to the other party. The absence of this procedure in the United States is likely to demotivate companies to initiate a lawsuit, because even in case of victory, the damages awarded do not necessarily cover all the costs incurred, and the patent troll loser has not to repay them.

Another difference is that the damages awarded in Europe and the United States are for very different sums. The “treble damages” rule, which makes it possible to triple the damages received by the counterfeit owner, does not apply in Europe.

To conclude, it is possible to note that the phenomenon of “patent troll” is also present on the European territory but in a less pronounced way than in the United States. The letter signed by the various American firms (Apple, Microsoft, ..) seems to be a process for contracting patents with more ease and these firms probably wish for a greater flexibility of the patent market.
Despite this, we know that the broadening of the field of patentability in the United States has strongly contributed to the development of patent trolls.
Added to this, the reputation of the United States Patent and Trademark Office (USPTO) to issue patents lower quality than those of the EPO (European Patent Office), it is clear that the European troll patents will not know a development equivalent to that of their American cousins. However, even without a similar power of nuisance, troll patents are present on the European territory.
Be that as it may, it can be said that the patent trolls, along with other intellectual property rights issues, have revived a debate about the foundation and purpose of patent law.

Sources :
http://www.lemonde.fr/technologies/article/2013/06/06/la-maison-blanche-s-attaque-aux-trolls-des-brevets_3425548_651865.html
https://europe.googleblog.com/2013/09/troll-proofing-europes-patent-system.html
https://en.wikipedia.org/wiki/Patent_troll
– Livre : “ Intellectual Property law in a globalized world “
http://avocats-publishing.com/Les-patents-trolls-ou-l-abus-du
http://www.huffingtonpost.fr/frederic-bourguet/patent-trolls_b_3586434.html

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Bertille Mazari  
Will “Patent trolls” soon appear on the European market? The subject of patent is a very sensitive one in the world of innovation. Some people think that every kind of invention has to be patented. When others think that it would be better off if there were no patent because it is a restrain to competition and free trade. But once…
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Will “Patent trolls” soon appear on the European market?
The subject of patent is a very sensitive one in the world of innovation. Some people think that every kind of invention has to be patented. When others think that it would be better off if there were no patent because it is a restrain to competition and free trade. But once we have decided to get a patent other discussion appears this is the case for “Patent trolls” which meet controversy.
A patent is the fact of disclosing someone’s’ ideas, techniques or innovations. The patented technology can be used by other companies, which will be paying a fee to the patent holder, and can improve products or services, while rewarding patent holders for their R&D investments.
“Patent trolls”, however, file patents with no intention of using their invention. Indeed, its purpose is to exploit other companies by negotiating licenses against money and if they don’t want to, to sue them for patent infringement. It is not an illegal action but simply a moral hazard from the patent legislation.
“Patent trolls” may constitute a real threat for innovation or comparative advantage because it may discourage the investment of companies in R&D (as one of Obama’s advisers wrote).
What might be tricky and make things hard to act against “Patent trolls” is that if they can get a patent, it’s because they have shown some innovation skills which are more advanced in the innovation process than other companies. But they don’t use those patents in the means they were made. Patents exist to encourage innovation, here “patent trolls” abuse of this patent system. “They don’t actually produce anything themselves » as the President Obama said.
“Patent trolls” will eventually appear on the European market, as it can be a very lucrative job, even if Europe environment is different than the United States one. The difference between Europe and the United States is that the different judges in case of patent infringement in Europe are all professionals unlike U.S. judges who are just a jury. Consequentially, the probability of uncertainties caused by these juries in U.S. is very lower in Europe. Moreover, we must keep in mind that it is much more difficult to get a Patent in Europe than in the U.S. Indeed much more patent are granted in the U.S. than in Europe which might make their protection lower and induce a higher opening for “Patent trolls” to operate up there.
A point that makes Europe a bit weaker than the US and more favorable as target for “Patent trolls” is the establishment of unitary patent and unified patent court. Indeed it will no longer be an injunction on one market but on several that the “Patent trolls” will strike in. Which set the “Patent trolls” in a very fortuity position in which “he can kill two birds with one stone”. So to speak to do even more damages to companies, earn even more money (according to the amount of market the innovation reaches) with a procedure cost that remains the same.
To conclude, I do not see why “Patent trolls” won’t try to conquer Europe. Even if the environment is less friendly in Europe than in the US to spread peacefully, it remains interesting and lucrative to enter the European market.

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Paul Belleflamme

Very good analysis. I just regret the lack of references (which are useful not only to back your arguments but also for the readers of this blog who would like to go deeper into this topic).

LARCHER Julie
As a reminder, « patent troll » is a company whose main activity is to sur other companies, whether or not they infringe their patents, in order to obtain compensation. This without releasing any product. The patent troll exploits the weaknesses of the patent protection system. That is why we need to look at it and ask ourselves what would be the…
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As a reminder, « patent troll » is a company whose main activity is to sur other companies, whether or not they infringe their patents, in order to obtain compensation. This without releasing any product. The patent troll exploits the weaknesses of the patent protection system. That is why we need to look at it and ask ourselves what would be the risk of this phenomenon in Europe.

The Unitary patent Europan, which would end the deposit of a patent in every country of the European union, would be a boon for « Patent trolls ». It is the opinion of a number of companies that have written an open letter to warn of this risk where they denounce in particular the leverage effect that this could engender. Indeed, today the countries of the EU have a system less favorbale tot the emergence of these parasites than is the USA (professional judges ans lower penalties). For example, because of the new unitary patent system, if a patent is accused of infringement and loses the trial, the product can be retired throughout Europe by a single court decision rather than requiring several revocations in each country.
Patent troll don’t only have this disadvantage, they also menace the incentive to innovate because companies are discouraged to innovate, even throught this is the original goal of patents. Moreover, there is the loss that it could cause to the consumer, with the disappearance of market of certain innovations.

There are also arguments in favor of this new unitary partent system and the increase of the patent in Europe.
The activity of the patent trolls makes it possible to restore a fair balance between the independent inventors and the large groups against which they have otherwise no means of defense in case of proven counterfeiting. The average cost of a counterfeiting trial is in fact hundreds of thousands of dollars.
As Mr. Alain Strowel said in his article, with the consent of the Unitary patent system, it will be possible « to obtain a valid legal injuction on a large market », that is to say that patents could cover a bigger geographical area. I think that the Unified Patent Court (UCP) follows a good strategy because this system will solve problems relating to the validity of the procedure and the violation of the proposed new unitary patent. Companies could then protect their monopoly on inventions in the acceding states by filing a single patent with the European Patent Office (EPO). In addition, UCP is cheaper for Europen businesses because it’s easier to protect at lower cost (removes administrative barrier)

To conclude, I think that the single European framework provides more avantages, and that the proposed code promises to be beneficial to Europe despite the fact that risk is present, it is relatively small compared to the avantages.
One can also be intersted in other problems that the troll patents pose : the questioning of the patent system itself . Indeed, the strategies of the patent trolls are legal, it’s only the right offered to any owner to enforce the monopoly of exploitation that is conferred to him by the obtaining of the patent. So if theses companies exist and are legal, it is that the system has a failure

http://www.lemonde.fr/technologies/article/2013/09/26/des-entreprises-s-alarment-de-l-arrivee-de-patent-trolls-en-europe_3485720_651865.html
http://www.generalpatent.com/media/videos/patent-troll
https://en.wikipedia.org/wiki/Patent_troll

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Laura Martin
We can see that the number of patent cases increased strongly in the USA (5841 in 2011 vs. 1401 in 2005). Some companies see the patent system as a money machine and no longer as a system to protect their innovation. According to a study of the “United Patents Consulting Agency” 68% per cent of the patent lawsuits were filed…
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We can see that the number of patent cases increased strongly in the USA (5841 in 2011 vs. 1401 in 2005). Some companies see the patent system as a money machine and no longer as a system to protect their innovation.

According to a study of the “United Patents Consulting Agency” 68% per cent of the patent lawsuits were filed by patent trolls in the USA. (1) These Non Practising Entities (NPE) own the patent, but don’t practice it. The NPEs only hold the patent and wait for the moment, when another firm does not respect the respective patent, for taking it to court. In the USA you have even different courts of laws, like the Eastern District of Texas, which are known for being most of the time in favour of the patent owner. (2)

Will this become a problem in Europe too? (3) This is a question we have to ask since the European Union has introduced the unitary patent and the unified patent court.
In Europe we still don’t have the same system as in the US.
The litigation costs are much higher in Europe, which makes it more expensive for patent trolls and which makes their business less profitable.
Moreover, there is a difference in material of payment of lawsuits. In the US the costs are divided between the two parts, whereas in Europe the loser has to pay the whole cost. Furthermore, the damages awards are much smaller in Europe.
There is no software patent, or a software patent really difficult to get, in Europe. This specific patent is one of the patents that are the most abused.
We see a rise of patent trolls in the European Union but it is not as dramatic as the situation in the USA or in Russia.

(1) https://www.heise.de/newsticker/meldung/Studie-2015-wird-das-Jahr-der-Patent-Trolle-2748491.html
(2) https://www.heise.de/newsticker/meldung/Apple-groesstes-Ziel-von-Patentklagen-2189198.html
(3) http://www.srf.ch/radio-srf-3/digital/marschieren-in-europa-die-patent-trolle-ein

https://docs.google.com/viewer?a=v&pid=sites&srcid=ZGVmYXVsdGRvbWFpbnxpbm5vdmF0aW9ubGF3ZWNvbnxneDo0NWNmNjE0NGFjMjcyODcy

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Akalibu Guélord
Patent trolls can be longer debated. Here I would just explain my own point of view about the concept, advantages, disadvantages and limits of the patent troll concept after have read his article. The first confusion which made “patent troll” a very large controversy is the self “name” by his meaning. Patent Troll, as it is said on the article,…
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Patent trolls can be longer debated. Here I would just explain my own point of view about the concept, advantages, disadvantages and limits of the patent troll concept after have read his article.

The first confusion which made “patent troll” a very large controversy is the self “name” by his meaning. Patent Troll, as it is said on the article, refers on the meaning of small evil creatures. It immediately becomes more difficult for protagonists and actors to defend it because they are indirectly categorized by the notion of the concept. This article talks also about such licenses negotiated when there is a threat of an action for infringement. It is a little troubling cause we don’t know exactly the kind of negotiation we’re facing. Types of negotiation can be very large. Moreover, a good controversy question is what could happen when negotiation failed or is badly turning? Another one could be how a negotiation his concluded? Larges answers on this kind of questions can lead patent troll’s dissidents to thinking about BLACKMAIL. as mentioned on this article. But this is a subjective result because we aren’t inside of the negotiation when it is surrounding. We can find the same case on the others notions given as the NPE or PAE. It is always badly defined for protagonist. I my point of view, I’m mixed but I would even defend patent troll approach because it still an evolution and in our kind of market, evolutions and creativity make positive sense. But, there are also disadvantages, it is a fact!

What is really including licenses negotiation? What about the inventor, the first producer? These two questions are limits and disadvantages for patents troll cause. In my point of view, to make patent troll appreciated, we must explain what negotiations of license can be. An example could be to write a report or a file depicted the type of licenses negations it was for each negotiation of license. It could more easier for judging and also to put valid injunctions for authorities.

Finally, to answer to the questions Will ‘Patent trolls’ soon appear on the European market? It is clear with the open letter that some of countries in Europ are ready. Patent troll are a big leverage and we can deny this could be supported by European market. The question is how much time it could be support? It depend of the European market system which differs from US market system. Some approaches still the big principles of European market as the no-cross border effect products, type of judgement, and even type of jurisdiction.

Patent Troll must be analyzed before being settled .

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Maxime Pierrot
“Non-practicing entities” (NPEs), also nicknamed “Patent trolls”, are companies said to make money on patents they hold without producing any products or services thanks to them. Principally based in the USA, they only use litigations and threats towards companies using similar patents to make profits. With the introduction of the UPC (Unified Patent Court), signed on the 19th February 2013,…
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“Non-practicing entities” (NPEs), also nicknamed “Patent trolls”, are companies said to make money on patents they hold without producing any products or services thanks to them. Principally based in the USA, they only use litigations and threats towards companies using similar patents to make profits. With the introduction of the UPC (Unified Patent Court), signed on the 19th February 2013, the European market of patents fears the emergence of these trolls. The implementation of a single patent jurisdiction across Europe gives incentives to NPEs to set up actions in Europe. Indeed, the UPC aims at giving the innovators the opportunity to hold a patent over several countries of Europe[1]. “One revocation could lead to revocation of a patent in all 25 participating countries”[2]. However, this spread of effect leads to a high leverage opportunity for NPEs as the market now concerned is larger. Moreover, the cost of implementing a patent is less expensive than in the United States. This could push NPEs to enter the European market as it also enforces the leverage effect. In the USA, the companies prefer negotiate fees or licenses with the NPEs than being taken under legal actions. Despite the cheaper cost of litigation in Europe than in the US Justice System[3], the “Injunctions” system (sets in the UPC) puts a sword of Damascus on top of the innovators’ heads. As this system allows “patent holders to bar unlicensed products containing their technology from the Market”, companies would prefer to negotiate with the “Patent trolls”[4].
Even if I agree with the arguments given in the open letter, the European jurisdiction should see what will happen during 2017[5], when the first European patents will be released. As the background is not really the same as in the USA, Europe should be aware but does not have to carefully follow the case of the US. This could lead, from my point of view, to the creation of Hybrid-NPEs, less harmful for the Innovation and the social Welfare and may be more focus on the “patents shop” aspect and on the protection of innovators’ patents[6].

[1] http://ipkitten.blogspot.be/2013/03/bifurcation-of-european-patent.html
[2] http://olswang-upc.com/olswang-and-the-upc/risks-and-opportunities/
[3] http://www.iam-media.com/blog/detail.aspx?g=b49115b8-922b-400e-8134-6ec61f0a7d48
[4] http://www.iam-media.com/blog/detail.aspx?g=b49115b8-922b-400e-8134-6ec61f0a7d48
[5] http://www.wintechblog.com/2016/06/unitary-patents-the-unified-patent-court-opt-out-timing-pros-and-cons/
[6] http://www.npr.org/sections/money/2011/07/26/138576167/when-patents-attack

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Virgile Pypaert
I believe that there are chances that we face the same issues encountered in the United States if the project of legislation led by the EU does not take care of them at the root. First of all, the EU has the advantage of not creating the legislation `ex nihlo´, offering them the opportunity to compare and analyse the different implementations…
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I believe that there are chances that we face the same issues encountered in the United States if the project of legislation led by the EU does not take care of them at the root.

First of all, the EU has the advantage of not creating the legislation `ex nihlo´, offering them the opportunity to compare and analyse the different implementations used in the other countries. For instance, the steady increase of “patent troll cases” tried in court in the United States indicates that there is a major flaw in the way the patents are awarded and the extensive power they have over a whole industry. Google mentions in their open letter that it involved $29 billion of legal costs for the sole year 2011 (without counting the delays to launch a new product and the potential loss of market share) [1].

Second, even if I believe that protecting intellectual property is important, it should not be done at any price though. Indeed, patents provide an integral protection over ideas that are, in my mind, sometimes too imprecise to be consistently protected. On top of that, no tangible application of the concept is required to be awarded a patent: a simple idea and a description suffice. For instance, Mirror Worlds Inc. patented in 1999 a relatively vague concept to classify and access documents on a computer [2]. Apple introduced a similar functionality in the early releases of Mac OS X and were sued for that in 2008, after reversing a first unfavourable judgement, they agreed to settle at the end paying $25 million [3] – to a patent troll…

The third point is more ambivalent, the use of EU unitary patent rules will decrease the fee asked to protect an invention across Europe from €36,000 to €4,725 [4]. This is a major advantage for small companies which will now be able to afford a larger protection of their know-how and be rewarded for the research they made. But on the other hand, a lower initial investment could incite patent trolls to increase the number of patents in their portfolio and thus the speculation on intellectual property.
As we can see, the situation is not black or white. Even if the original goal of unifying patent rules is laudable, a lack of precision or a poor implementation could compromise the outcome by opening the gates to players who will use it to create profit (and refrain progress…).

References
[1] https://docs.google.com/file/d/0Bw8Krj_Q8UaEd3U1dUJ3SVp6LTQ/edit
[2] https://patents.google.com/patent/US6638313B1/en
[3] http://www.macrumors.com/2016/07/08/apple-mirror-worlds-cover-flow-patent-settlement/
[4] http://www.europarl.europa.eu/news/en/news-room/20121210IPR04506/parliament-approves-eu-unitary-patent-rules

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Léandre de Schrynmakers
Fundamentally, I believe we need more transparency in order to dynamize the innovation. But in some cases, a patent is the right option ; especially when the technology a company is working on is extremlly expensive technology and the results are doubtfull. Here, the problem with patent trolls is that the whole system is in danger, not only the…
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Fundamentally, I believe we need more transparency in order to dynamize the innovation. But in some cases, a patent is the right option ; especially when the technology a company is working on is extremlly expensive technology and the results are doubtfull. Here, the problem with patent trolls is that the whole system is in danger, not only the companies that are being sued by the NPE but even the credibility of the original patent system.
The Unified Patent Court (UPC) goes in the right way if the European Union want to act as one unique market. It allows companies to buy only one patent for all the signatories countries and therefore insure a largest protection area for the company that files a patent. But this also increase the leverage of the patent and could be an incentive for patent trolling. But going to court in europe is not that expensive and the NPE might not be winning as they currently does in the US.
According to me, the best way for the entreprises to be protected against patent trolling is the fact that the European courts are composed only by professionnal judges and not by a jury as they do in the american courts. So the threat is less important than in the America, even with the problem of bifurcation, as we have seen in Germany.
It is intresting to see that the companies that have signed the open letter are all huge companies spending an enormous part of their budget in R&D and I understand their position and their worries but the threats seem a bit overstated.

References :

http://www.lemonde.fr/technologies/article/2013/09/26/des-entreprises-s-alarment-de-l-arrivee-de-patent-trolls-en-europe_3485720_651865.html
https://en.wikipedia.org/wiki/Unified_Patent_Court
Belleflamme, P. (2015). A primer on intellectual properties (slides). Not published, Louvain School of Management, Louvain-la-Neuve.
Strowel, A. (2013). Will “Patent trolls” soon appear on the European market?
Lambrecht, L. (2013). Les “patent trolls” bientôt sur le marché européen?. La Libre Belgique

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Jordan Oger
Today, the opinions concerning the protection of innovation are diversified. A solution such as patent protection can hardly ever be perfect. This gives an incentive for some opportunists to search and exploit the weaknesses of the system in order to gain money easily and rapidly. The patent trolls are a typical example of this behaviour. As a reminder, patent trolls…
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Today, the opinions concerning the protection of innovation are diversified. A solution such as patent protection can hardly ever be perfect. This gives an incentive for some opportunists to search and exploit the weaknesses of the system in order to gain money easily and rapidly.

The patent trolls are a typical example of this behaviour. As a reminder, patent trolls are companies that do not invent anything, they prefer to buy patents (usually from bankrupt firms) for enforcement purposes. They try to make money off a patent that they are not practising. They enforces patents against infringers without having the intention to manufacture the patented product. These trolls have a very negative image and are accused of smothering innovation. Their credo is linked to their patent’s definition: a patent do not confer the right to practice an invention, it does give the right to exclude others from using, making, selling and marketing the patented invention. It is therefore perfectly acceptable to sue for patent infringement. Moreover, for the troll defenders, a patent is not needed to practice an invention. To roughly summarize their thinking, a patent has no other function than to sue, these patent trolls only focus their effort on enforcing patent rights.

At the moment, these patent trolls are confined to the USA. However, the desire of Europe to create a future unitary patent and an unified patent court makes suddenly appear a transmission risk. Why? The unification would give access to a huge market in one go. This combined to the « bifurcation » procedure where a litigation can be treated by 2 independent courts: one examining the validity of the patent and the second determining if there is a violation. However, the commercialization can be preventively suspended before the verdict concerning the patent validity (in all the 13 countries member of this unitary patent). This gives an enormous power to the patent trolls.

In the USA, the targeted firms are usually trying to negotiate a compensation in order to avoid long and expensive trials. The compensations are calculated with the goal to discourage the firm to take any legal action. The cost of defending your company against a patent infringement suit has been estimated to 1 million or more before the trial and to 2.5 million for a complete defense. So even if the company is successful the risk are huge and the process can be very long and time consuming. Moreover, the jury are composed of non-experts who can be easily manipulated with a good lawyer. For all these reasons, companies in the USA prefer to pay and endure this kind of “blackmailing” rather than taking risk in trials. The patent trolls are aware of this and are taking benefit of it. Patent trolls are also aware that they don’t have to defend their patent immediately. Companies may produce a patented products for years until being sued by a troll.

The patent trolls have a direct effect on the business. They make firms endure extra costs. A study coming from Harvard University demonstrated that firms forced to pay trolls were in the following years reducing their R&D spending. Which is running against the goal of patent (promoting innovation).

The patent trolls also have technics to identify the firm most likely to pay. Their targets are firms with few legal representors within their staff and with more available cash. This leads firms to invest in legal representation rather than in technology development. They like to sue firms that have a lot to lose because they already heavily invested to develop their product (so they do not hesitate to wait in order to be sure that the firm in question will have no other choice than to accept).

Unfortunately for innovators, the classical defense strategies are not effective against these trolls (monitoring patent activities, patent pooling arrangement,…).

For all these reasons, in my opinion, these opportunists, exploiting the weaknesses of the patent system and the ideas of others for the sake of money are plague for innovation.

Bibliography

– Wikipedia, “Patent Troll”, https://en.wikipedia.org/wiki/Patent_troll, page consulted on the 29/11/16
– Lambrecht, L. (2013). Les “patent trolls” bientôt sur le marché européen?. La Libre Belgique

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Dylan Weverbergh
I would like to give my opinion on this article because it appeals to me as an open-minder regarding the nowadays economic situation. We need to take a closer approach on the reasons or not to have such companies also called “Non-Practising Entities” inside our markets. First of all, we call a “patent troll” a person or a company that…
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I would like to give my opinion on this article because it appeals to me as an open-minder regarding the nowadays economic situation. We need to take a closer approach on the reasons or not to have such companies also called “Non-Practising Entities” inside our markets.

First of all, we call a “patent troll” a person or a company that gathers patents to make use of them in a court against patent infringers. By suing those companies, they will be rewarded or not depending the court situation and this is their business plan.

Depending from which side of view we are, this phenomenon can be seen as good or bad element in our society. On the one hand, regarding from the pros point of view, it can be seen as a good purpose to guaranty the authenticity of the products or services provided by the different companies. They also bring to light the transferability of the patents that isn’t secured because it is said that inventors aren’t necessarily good at business. Another argument is that they are specialist in this domain and are the most reliable people to deal with patents.

On the other hand, from the cons point of view, patent trolls aren’t creating additional value. They take advantage by suing companies to make profit. It is threatening the innovation process because start-ups feel uncertainty and those patent troll are big taxes for big companies.

To my point of view, we shouldn’t let them enter the European market because we have a different court system which is called “loser pays costs regime” that isn’t applied in the US. In fact, it becomes riskier because the loser will have to pay the attorney’s fees of the opposite party. It is maybe less advantageous for those “patent trolls” to show up but if they succeed it can be more penalizing for the companies that are sued.

Moreover, we are in a world where companies compete each other and sometimes on a market where fierce concurrence reigns. For that reason, they need to be innovative to engorge additional market shares. We need to keep those markets constantly innovative by preventing those patent holding companies to enter.

To conclude, even if each side of the debate has their arguments, we need to expose the global impacts. The negative impacts will be greater than the positive ones. For this reason, by taking the problem on a larger scale we can’t let them enter the European market.

Sources:

http://www.lalibre.be/economie/libre-entreprise/les-patent-trolls-bientot-sur-le-marche-europeen-5261ffa83570314ade9eb46e

https://en.wikipedia.org/wiki/Patent_troll

https://www.theguardian.com/commentisfree/2013/jun/05/patent-trolls-threat-innovation

http://patentlyo.com/patent/2014/04/patcon-patent-debate.html

https://en.wikipedia.org/wiki/English_rule_(attorney%27s_fees)

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Giada Garofalo
According to former Chief Judge Randall R. Rader, a patent troll, also known as Non-practicing entities, is “a person or company that attempts to enforce patent rights against accused infringers far beyond the patent's actual value or contribution to the prior art”.[1] It is important to mention that NPEs usually amass large portfolios of patents, which they purchase from companies…
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According to former Chief Judge Randall R. Rader, a patent troll, also known as Non-practicing entities, is “a person or company that attempts to enforce patent rights against accused infringers far beyond the patent’s actual value or contribution to the prior art”.[1] It is important to mention that NPEs usually amass large portfolios of patents, which they purchase from companies that are going out of business, or from firms that have developed technology that they don’t intend to pursue. They also buy patents from inventors who can’t afford to develop their ideas. The trolls then look for successful products that use the technology covered by their patents and demand a licensing fee. Because patent suits are expensive to defend, the target company is often willing to settle out of court. [2] In other words, patent trolls’ aim could be purely intended as making profit by pursuing in justice the “infringers”.

But can patent trolls really be considered as a misuse of the patent itself? And could this technique be a threat for the European patent system, taking advantage from the unified patent package?
Surprisingly, patent trolls exist since the days of Henry Ford’s Model T. In fact, in 1903, George Selden, a patent attorney, sued Henry Ford and four other car manufacturers and insisted that he receive a royalty for every car that was sold. Despite not ever actively advancing automotive technology at the time, Selden held a patent, which was claimed to cover the automobile. [3]
Obviously, some promoters defend the nature of patent trolls by affirming that they rely on fundamental principles of the patent right recalling, for example, that it is in the full right of the patent owner to exclude others from commercializing the patented product, even if the latter has never been introduced into the market, and that patent trolls are an undeniable incentive to innovation.
Nevertheless, patent trolls are considered by many as a remarkable threat for the economy, insisting that a stronger regulation needs to be adopted. In fact, as reported by the Electronic Frontier Foundation, “A patent troll uses patents as legal weapons, instead of actually creating any new products or coming up with new ideas”. Although at first sight this could seem a problem that mostly affects small companies and start-up, many big companies in the US are impacted by patent trolls, and are joining their forces to minimize their lucrative practice. Furthermore, LOT Network, a non-profit community of companies that work together to minimize their exposure to patents owned by trolls, with members like Canon, Logitech and Subaru[4], affirmed that less than 1% of all defendants in PAE suits are ultimately found to have infringed a valid patent[5].

From the European point of view, although the unified patent package is a remarkable step forward in the harmonization of the patent regime that promotes efficiency and long-term competitiveness, patent trolls are a real danger under many aspects. Most of all, the unification of the patent system could give those “trolls” the possibility to attack in justice companies on a very large territory. Of course, the impact on the whole economy would be disastrous and with the time the situation will worsen.
To alert the authorities, 16 European and U.S. companies, including Adidas, Deutsche Telekom, Apple and Microsoft [6]decided to raise their voice against patent trolls’ threat through an open letter suggesting improvements to the Unified Patent Court’s proposed rules. These fixes will help the EU system avoid the issues that have plagued the U.S. and will ensure companies are investing in innovation and growth—not patent litigation.[7]

In conclusion, I strongly believe that patent trolls are a plague in today’s economy all over the world and that serious measures have to be taken in order to limit this kind of abuse.
Of course, every company in the world is in the position to raise their rights, but in every single case good intentions and fair-play have to be at the basis of any action undertaken.

Sources:

[1] https://en.wikipedia.org/wiki/Patent_troll
[2] http://science.howstuffworks.com/innovation/everyday-innovations/patent-trolls.htm
[3] http://www.davison.com/blog/2013/10/01/trolling-for-patents/
[4] https://techcrunch.com/2016/06/05/why-patent-trolls-wont-give-up/
[5] http://lotnet.com/the-patent-troll-problem/
[6] https://europe.googleblog.com/2013/09/troll-proofing-europes-patent-system.html
[7] https://europe.googleblog.com/2013/09/troll-proofing-europes-patent-system.html

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Jonathan Seghers
In this comment, I will give my opinion on the following question: « Are patent trolls really bad? » Companies sometimes fears the development process and the costs linked (it takes a lot of time, money… it can also not work). Obviously some companies decided to hold patents as their main business (called today Non Practicing Entities). Patent trolls are now seen…
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In this comment, I will give my opinion on the following question: « Are patent trolls really bad? »

Companies sometimes fears the development process and the costs linked (it takes a lot of time, money… it can also not work). Obviously some companies decided to hold patents as their main business (called today Non Practicing Entities).

Patent trolls are now seen as a brake to innovation because potentials innovators have to pay fees to patent holder if they want to launch their business. Many people then think that patents should only be delivered to people or companies which put the patents into practice. Those companies are facing all the risk and then should receive the entire benefit from it.

From my point of view, ideas are just a kind of product (commercially speaking). People or companies should be able to sell or buy them freely on a kind of ideas market. That means that legislation should clearly state what is allowed and how it works. I personally see patent trolls as middlemen in business situations. They does not create anything but they are adding value by improving efficiency in matching up buyers and sellers.

http://www.forbes.com/sites/knowledgewharton/2015/12/07/why-patent-trolls-are-not-all-bad/#67bfc0b4703d

http://sites.udel.edu/cisc356/2015/04/29/patent-trolls-good-or-bad/

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Victor Snoy
There is one thing on which everyone would probably agree: the fact that these “patent trolls have no real business interests to defend” and that their “business model is based solely on extracting settlements through the assertion of often low-quality patents”. While I do not see any moral justification at all in that kind of business, I will not support…
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There is one thing on which everyone would probably agree: the fact that these “patent trolls have no real business interests to defend” and that their “business model is based solely on extracting settlements through the assertion of often low-quality patents”. While I do not see any moral justification at all in that kind of business, I will not support the position taken by the companies that signed the open letter. Patent trolls are the consequences of system that has been perverted. For this matter we have to dig to the root of the problem. We must ask ourselves why this business is being so prolific and growing up the last years? How come such dubious patents exist? This makes us question the relevance of some patent’s quality.

The ECB defined a patent as “a legal title that can be granted for any invention having a technical character provided that it is new, involves an ‘inventive step’, and is susceptible to industrial application”. What exactly defines an ‘inventive step’ is another question. This might be something interesting to look into. My lack of knowledge in that field will not provide you an answer. After all, whether we are pro or against ‘patent trolls’, we can conclude that it is the consequence of a failure in the Intellectual Property Right system that was among others created to promote and push innovation. I have no doubt about ‘patent trolls’ being an ‘obstacle’ to innovations. My doubts are more focused on the process for which patents are granted and how they are reviewed in the following years. It might be the cause of those dubious patents.

The unified patent package could increase the bargaining power of such companies in Europe. Nevertheless, we have to be careful when comparing the US to the EU. ‘Patent trolls’ are more powerful in the US due to the US procedure and to the culture of litigation over there. Furthermore, as mentioned in several articles, ‘bifurcation’ already exists in Germany and has not attracted a sustainable amount of ‘patent trolls’ over there. No one can deny that Germany is an enormous market and that companies willing to sell to Europe are susceptible to sell in Germany as well.

I therefore agree with Professor Strowel’s stance on this subject. There is a risk of seeing these companies in Europe but we do not have to overestimate them.
As a conclusion I would like to point out that we have to focus not only on the tip of the iceberg (i.e. the patent trolls) but more how these patents are granted. This will solve more problems and will create a bright future for the next big innovations.

Sources:

https://www.ipdigit.eu/2013/11/will-patent-trolls-soon-appear-on-the-european-market/

http://www.lalibre.be/economie/libre-entreprise/les-patent-trolls-bientot-sur-le-marche-europeen-5261ffa83570314ade9eb46e

http://www.lalibre.be/economie/libre-entreprise/les-patents-trolls-bientot-sur-le-marche-europen-le-risque-n-est-pas-negligeable-5261ffa63570c7e5f9ee5755

https://europe.googleblog.com/2013/09/troll-proofing-europes-patent-system.html

https://docs.google.com/file/d/0Bw8Krj_Q8UaEd3U1dUJ3SVp6LTQ/edit

http://ec.europa.eu/growth/industry/intellectual-property/patents/

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Adrien Deltenre
The subject of patent is a very sensitive one in the world of innovation. For reminder, a patent is a legal right granted by a government to stop others from copying, manufacturing, selling or importing your invention without your permission for a period of usually twenty years. In most innovating companies, research and development are very costly and patents give…
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The subject of patent is a very sensitive one in the world of innovation. For reminder, a patent is a legal right granted by a government to stop others from copying, manufacturing, selling or importing your invention without your permission for a period of usually twenty years. In most innovating companies, research and development are very costly and patents give the possibility to avoid the loss of these R&D investments.
In this comment, firstly, I will explain the terms “Patent trolls” and “the unified patent package”. After that, I will give you my opinion.

The “patent trolls”, mostly active in USA, are companies that do not commercially use the acquired patents to protect their inventions but use them only as a mean of pressure in order to extort money from other companies. This type of company is more commonly referred to as a Non Practicing Entity (NPE) because its main characteristic is that it does not produce goods or services. A commonly use definition of an NPE is: “any entity that earns, or plans to earn, the majority of its revenue from enforcing patents.”

When we talk about “Unified Patent Package”, we refer in fact to two elements: the Unitary Patent and the Unified Patent Court.
The European patent with unitary effect (EPUE), commonly known as the Unitary Patent is the first piece of the EU patent package. It is a legal title that will provide uniform protection across 25 EU countries providing huge cost advantages, reducing administrative burdens and facilitating the administrative processes. It will be established by two Regulations which entered into force on 20 January 2013 and which will be applicable from the date of the entry into force of the Agreement on a Unified Patent Court.
As far as the second piece of the EU patent package, the European Union is working for several years on the establishment of a European Patent Court which will be created on the basis of an international treaty that was signed on 19 February 2013 and that will enter into force as soon as 13 states, including France, Germany and the United Kingdom, have ratified it.

The unified patent package has a number of advantages which could turn into weaknesses. In one hand, the lower costs and the simplification of administration are advantages for spurring innovation and creating a cooperative atmosphere between the Member States but on the other hand, it leaves a bigger playground for patent trolls. The recent agreement doesn’t include enough exceptions or limitations such as prior user rights or research exceptions. Those missing measures encourage opportunistic behavior and therefore the patent trolls.
Moreover we can talk about the power of a court injunction especially under the Unified Patent Court. A patent holder can ask for an injunction if a tierce person/company uses his technology/patent for the business without any authorization. Under the new patent regime, an injunction could stop the production beyond one country and could be extended to most European countries. This could have unreasonable consequences for the European market.

To conclude I would say that, a system of uniform patent is a logical continuity within the European integration process but this system should be deeply analyzed, questioned and improved in order to anticipate the appearance of patent trolls.

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Balaji Ramachandran
In my comment on patent trolls, I will look to highlight why they are not a threat to European businesses and why their existence isn’t antithetical to the idea of a free market, especially when other firms capitalize on the innovations of their competitors in similar ways. First, to understand why patent trolls are not a threat to European businesses,…
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In my comment on patent trolls, I will look to highlight why they are not a threat to European businesses and why their existence isn’t antithetical to the idea of a free market, especially when other firms capitalize on the innovations of their competitors in similar ways.

First, to understand why patent trolls are not a threat to European businesses, we look at the kind of threat they possess. By extending the veracity of claims made in a plethora of patents owned by patent trolls, these firms are in a position to target innovative firms – both small and large – in fast-growing industries and stall the progress of research by demanding hefty payments to clear potential lawsuits. While this is a major problem in the US, which sees a remarkable number of lawsuits filed every year, it does not apply as much to Europe for two reasons. First, on account of the Loser pays principle in Europe, i.e., the loser of a lawsuit pays for the costs of both parties, the risk involved in pursuing uncertain litigation is substantial for patent trolls. Second, as cases in Europe are decided by professional judges and not by a collection of citizens in the jury, the potential to skew verdicts is much lesser as more knowledgeable people make this call. We can see that patent trolls in the US have thrived because of their position in negotiations – they have nothing to lose if they fail, but gain a substantial amount if they win – and a lengthy appeals process and easy bankruptcy norms mean that patent trolls do not face any of the threats that regular firms do. With the establishment of a unitary patent office, the threat of delays that forces companies to negotiate with patent trolls does not exist and thus, innovative firms can continue to pursue research safely in the knowledge that their work will be recognized.

But, more importantly, the existence of patent trolls in a free market shouldn’t be a cause of concern. Rather, they help push the boundaries of innovation, albeit not by their own efforts, as firms are forced to show tangible differences in their product line to escape the attention of patent trolls. Additionally, patent trolls target industries that are growing quickly, suggesting that the pace in innovation is such that patent trolls eventually will not be able to keep up with the flow of products. This can be further curbed by enacting stricter regulations on patents that are excessively broad in their claims. Finally, the behavior of patent trolls is not massively different from other firms that look to capitalize on the efforts of innovative firms. For instance, Rocket Internet has been known to back startups that look to scale up ideas as quickly as possible and get the product to the same or other global markets, sometimes at the cost of the original innovator. This suggests that companies should take this as a cue to improve their go-to-market capabilities as well. Alternatively, they can look to form partnerships that will enable them to license the technology and/or pursue methods to protect their innovation via trade secrets to ensure they benefit from their hard work.

References

[1] https://hbr.org/2014/07/the-evidence-is-in-patent-trolls-do-hurt-innovation
[2] https://europe.googleblog.com/2013/09/troll-proofing-europes-patent-system.html
[3]http://law.stanford.edu/wp-content/uploads/sites/default/files/child-page/188509/doc/slspublic/janssens_wp19.pdf

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Nicholas Chin
Although there is a risk that patent trolls will target Europe next (if they have not done so already), I am confident that the EU is implementing the appropriate measures to combat their tactics. Patent trolls essentially leech innovation whereby they are not contributing to the knowledge economy, rather they are sucking it dry of its resources without any significant…
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Although there is a risk that patent trolls will target Europe next (if they have not done so already), I am confident that the EU is implementing the appropriate measures to combat their tactics. Patent trolls essentially leech innovation whereby they are not contributing to the knowledge economy, rather they are sucking it dry of its resources without any significant contribution. Trolls are by definition and nature, positioning itself so as to be able to pounce on vulnerable smaller companies.

One of the major arguments as to why trolls will enter Europe, which I agree will happen, is that legal fees can surmount to ridiculous numbers to the point that a SMB would rather settle out of the court. However, the unitary patent court and system which should be in place by 2017 should combat this and hinder the power of patent trolls. By creating a fully integrated court system, it limits the power larger companies who can leverage their networks and resources in the country of litigation. SMB’s can now play on an even playing field on the legal battlefield if they take the time to prepare themselves. Another tactic that is being used is who pays for the legal fees in the case of a loss. By implementing policies whereby the loser has to pay both side’s legal fees, it will dissuade trolls from trying to shakedown as many smaller players for IP that they have “encroached on”.

I do not think trolls only contribute to the knowledge economy negatively, though. Patent trolls can play for the little guy. Single patent owners are common to be overshadowed and overpowered by large corporations. If acted on appropriately, trolls can pool its resources of several single patent owners and dish out some pay for the single patent owners when it legally battles major corporations. So although patent trolls may as a whole leech from the knowledge economy, they do (every once in awhile) help out the smaller players.

Sources:
https://en.wikipedia.org/wiki/Unitary_patent
http://www.forbes.com/sites/timworstall/2013/09/26/how-to-beat-the-patent-trolls-european-union-style/#d445ff210d27
http://www.ipwatchdog.com/2013/12/10/the-other-side-of-the-debate-over-patent-trolls/id=46671/

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Claudia Bruffaerts
In a way patent trolls strategies are legal, as they help owners defend their rights of invention and their monopoly. Defenders would say that patent trolls contribute to “re-establishing justice” by rebalancing forces between inventors and users. However, after doing some reading and research on the subject, I realised how the patent system has increasingly been prone to abuse. Firstly,…
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In a way patent trolls strategies are legal, as they help owners defend their rights of invention and their monopoly. Defenders would say that patent trolls contribute to “re-establishing justice” by rebalancing forces between inventors and users. However, after doing some reading and research on the subject, I realised how the patent system has increasingly been prone to abuse.

Firstly, the purpose of such patent trolls is not very glorious: they make their money by threatening companies with lawsuits. Studies show that almost 90% of cases are settled before going to court because it is cheaper than fighting the lawsuit as it costs 2 to 5 million dollars. Their main business is based on blackmail and determining the maximum amount of money that companies are willing to pay. Patent trolls can target any kind of company or business owner, and this is why I think that it can seriously threaten the development of our start-ups, SME’s and discourage entrepreneurship indirectly.

Secondly, when it comes to certain type of patents, it is much more difficult to identify a patent infringement. While patents for machines tend to be fairly specific, software patents can be so broad and vague that they may allow someone to later claim ownership for an invention. If a troll can get a vaguely defined software patent, they can demand payment for anything that fits that description. This is what happened to Austin Maya, who made a flight simulator app and got sued by the Uniloc company for patent infringement. The problem was that it concerned the technology upon which all android apps were based.

I totally understand why major companies cooperate in what is now called the “UCP Industry Coalition”. When it will eventually come into force, the unitary European patent will have a major impact and will empower and provide more opportunities for patent trolls to frighten Europe. The coalition includes the 5 biggest IT companies, as well as the pharmaceutical and aviation companies. They are the ones who could lose most in the blackmail, and are easy to target because of the broad dimension of their patent use. According to Alain Strowel, professor at UCL, “more and more non-operational entities should spread across Europe” (translated from French). Because of the bad image nowadays of patent trolls, some big companies subcontract this activity to smaller entities in order to harm their competitors or make profits. Microsoft and Nokia, for example, have already transferred about 2000 patents to Mosaid, a small troll.

I think that there is a risk that Patent trolls will come to Europe in the coming years but we should not overestimate the risk or be afraid of it. If they are implemented in Europe, I think that the cost of interest and damages would be more reasonable than in the US because we have a very different judicial approach and culture. Moreover, the first European patents will not be delivered before minimum 2017 and the delivery of a unitary patent takes at least 18 months. If patent trolls appear in Europe, I am hopeful and optimistic that our European institutions will set the right frames, limits and ask for possible contributions from the patent trolls.

http://perso.uclouvain.be/paul.belleflamme/papers/LLB2013b.pdf
https://www.youtube.com/watch?v=3bxcc3SM_KA
http://www.itespresso.fr/ecosysteme-it-dresse-patent-trolls-europe-90458.html
http://www.lalibre.be/economie/libre-entreprise/les-patent-trolls-bientot-sur-le-marche-europeen-5261ffa83570314ade9eb46e
https://www.ipdigit.eu/2010/11/what-to-think-of-patent-trolls/

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Hogge Pauline
I would like to begin this argumentation by developing the terms “patent trolls” and “unified patent package” in order to better understand the following question “Does the unified patent package seriously reinforce the risk of ‘patent trolls’ landing in Europe?” I will continue by analyzing the open letter jointly signed by 16 U.S and European Companies. I will conclude this…
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I would like to begin this argumentation by developing the terms “patent trolls” and “unified patent package” in order to better understand the following question “Does the unified patent package seriously reinforce the risk of ‘patent trolls’ landing in Europe?” I will continue by analyzing the open letter jointly signed by 16 U.S and European Companies. I will conclude this argument by giving an answer to the question raised above.

In order to better understand the question “Does the unified patent package seriously reinforce the risk of ‘patent trolls’ landing in Europe?”, I would like to begin by developing the terms “patent trolls” and “unified patent package”. I will then analyze the open letter jointly signed by 16 U.S and European Companies and I will conclude this argumentation by giving my answer to the question raised above.

First of all, what are the ‘patent trolls’? Laurent Lambrechts published an article in “La Libre Belgique” in 2013 about the patent trolls on the European market. He tells us that these companies, very active in United States, live on the acquisition of patents for the sole purpose to attack in Court anyone who violates them. These patent trolls therefore don’t commercially use acquired patents but only use them as a mean of pressure to extract money from other companies.1
According to the definition, the ‘patent trolls’ are active in United States. Effectively, an American research has shown that in 2012, 4700 trials related to intellectual property were launched and 62% of them were the work of ‘patent trolls’1. It is interesting for them to act in the United States because most companies choose to negotiate compensation rather than engage in long and costly trials. The sum of money claimed is calculated precisely in order to discourage companies from launching a lawsuit.

Secondly, let us look at the definition and the purpose of a unified patent package. It is a European patent which has a standardized effect on the territory of the 25 participating members. His aim is to promote scientific and technical progress but also the functioning of the internal market, by making access to the patent system easier, cheaper and legally secure. The agreement also raises the level of protection guaranteed by a patent providing the possibility of obtaining a uniform patent protection in the participating Member States, and will remove the costs and complexity of the system for undertakings throughout the Union2.

Therefore, in my opinion, this unified patent is a very good thing for Europe. But not everyone agrees. Indeed, in 2013, the ESIA and SFIB associations (which represent 24 companies) and 14 others companies created a coalition called “UPC industry coalition”4 to express their fears about this European unified patent.3 In fact, they criticize some aspects of this patent because they think it will create significant opportunities for abuse, such as bifurcation procedure and injunctions. “Injunctions permit patent holders to bar unlicensed products containing their technology from the market. It is a powerful, and in some cases appropriate, tool for patent holders. However, rigid application of an injunction rule could enable unprincipled litigants to “hold up” manufacturers by making unreasonable royalty demands even for a single trivial patent on a complex product”5.

In conclusion, to the question “Does the unified patent package seriously reinforce the risk of ‘patent trolls’ landing in Europe?” I would answer that I think that this open letter confirms the fact that is possible that ‘patent trolls’ arrive in force in Europe. Moreover, I understand the desire of these companies to prevent this phenomenon from growing in Europe, given the extent that it took in the United States. But I also think that Europe is less attractive because we know that damages for patent infringement are much more reasonable than in United States, which could discourage the patent trolls.

1http://perso.uclouvain.be/paul.belleflamme/papers/LLB2013b.pdf
2http://www.glossaire-international.com/pages/tous-les-termes/brevet-unitaire.html
3http://www.macg.co/2013/09/brevet-unitaire-un-risque-de-patent-trolls-en-europe-73426
4http://www.silicon.fr/upc-industry-coalition-site-contre-patent-trolls-europe-110053.html
5https://docs.google.com/file/d/0Bw8Krj_Q8UaEd3U1dUJ3SVp6LTQ/edit

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Timothée Cosse
In this comment, I will give my opinion about the “patent trolls” situation and decide if the unified patent package seriously reinforces the risk of ‘patent trolls’ landing in Europe or not. First of all, I would like to remember the legal definition according to the US constitution of what blackmailing is. “Whoever, under a threat of informing, or as a consideration…
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In this comment, I will give my opinion about the “patent trolls” situation and decide if the unified patent package seriously reinforces the risk of ‘patent trolls’ landing in Europe or not.

First of all, I would like to remember the legal definition according to the US constitution of what blackmailing is.

“Whoever, under a threat of informing, or as a consideration for not informing, against any violation of any law of the United States, demands or receives any money or other valuable thing, shall be fined under this title or imprisoned not more than one year, or both.” 18 U.S. Code § 873 – Blackmail

Any law is subject to interpretation, but in my opinion this one seems pretty clear.

Therefore, as “patent trolls” have the law on their side, we cannot speak of blackmail in the conditions you mentioned. The problem here isn’t the trolls, but the law itself. Why is it possible to act like this in our markets?

In some regions of Belgium, there are laws forcing people to let the state handle the management of their real estates if not occupied for a determined period of time. It could be interesting to think about a similar idea to solve the “patent trolls” issue. If a company isn’t creating any additional value and is using patent as a tool to harvest money it should be punished. Today’s society has already shown the pressing need for more and more innovative products.

Therefore these companies should be forced to act in a more financial focused field which would not give them the possibility to actually own a patent. This could be seen as a simple model, if a company gives more “innovative well being” to the society than another, it should not be possible to stop it from using the tools it needs.

Concerning the pros and cons you presented, I think that only the size of the market ( directly related to the “trolling profits” ) and the type of judgement for patent cases are key success factors for patent trolls in Europe. whereas you see a jury’s decision as a advantage for patent trolls, I see it as a big pain in the neck. A judge can and will follow the law, but people tend to always favour smaller structures.

In conclusion, I think the problem here are the regulations. Where there are rules, there will be people to use them to make money. That is why European institution should think about a more adaptive way to manage patent issues. Some laws are frozen in time but patenting is a constant evolutive process and need to be protected more and more efficiently.

https://www.law.cornell.edu/uscode/text/18/873
http://www.rbdh-bbrow.be/analyses2006/luttecontrelgtsvides.pdf
http://www.amcreativityassoc.org/Resources/Documents/Cohen-TOP+10+Reasons+Why+We+Need+INNOVATION.pdf
http://www.law360.com/articles/625559/jury-favors-adt-s-rival-in-27m-alarm-trademark-suit

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Brice Van Eeckhout
In this comment I clearly state that patent trolls are a danger because they don’t create any additional value and thus are a real bridle to the creation of innovative products. I totally disagree with the argument saying that patent trolls are at least inspiring new innovators by publishing to the public domain their ideas because it is unrealistic. Furthermore,…
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In this comment I clearly state that patent trolls are a danger because they don’t create any additional value and thus are a real bridle to the creation of innovative products. I totally disagree with the argument saying that patent trolls are at least inspiring new innovators by publishing to the public domain their ideas because it is unrealistic. Furthermore, the idea behind patent trolls is immoral because it aims to prevent innovators creating real products to benefit of their work and risk taking.

Meanwhile, I don’t think that the real problems are the Unified Patent Court project and the bifurcation procedure. They are only putting more light on the underlying real issue, the “patent trolls”. Thus these projects shouldn’t be abandoned because on the other hand they offer lots of benefits for the society. For instance, if we proposed today to the American legislators if their system should go back from a unified court to an aggregation of 50 different state courts, there is no way they would accept it. The unified system procedure eases the patents deposits, lowers its costs and gives much more flexibility and protection to innovators.
Saying that this also eases the deposit of patent trolls is pretty straightforward since it has the same effect on all patents.

Instead of fighting the symptoms of patent troll’s friendly legislations, we should hinder their creation. In this comment I propose a simplified way to do so by analyzing the behaviors of patent depositors.

The first reason why an inventor would want a patent is in order to directly launch the production and selling of his idea to customers. Thus these patentees will as soon as possible make research and tests on the production of their idea.

Another kind of inventor could depose a patent but without the resources to develop and commercialize the idea, he could want to sell it to another person or firm. In this case, the patentee will make research on potential buyers and contact them as soon as possible.

The last case I can imagine is the one of an established firm, which is asking for patents around an existing product. In this case, the patentee doesn’t want to develop his patent or sell it but uses it to protect his established product, which he values highly.

In all three cases, the patentees are actually creating value by proposing products and innovations to the public. In most other cases, we can speak of “patent trolls”.

Thus my idea is to oblige patentees to deliver, before the protection is granted, physical evidence (letters of offer, prototypes, actual products close to the patent, …) that they are in one of the three (simplified) cases above. Otherwise, their patents will be rejected.

The same idea could be applied to bifurcation procedures. In this case, the court shouldn’t impose the production stop of a potential imitator if the patentee can’t bring those evidences.

Sources:

http://www.theregister.co.uk/2016/06/15/patent_trolls_innovation_and_brexit/

http://www.ip-watch.org/2016/10/27/high-quality-patents-keep-patent-trolls-check-europe-eu-report-finds/

http://www.forbes.com/sites/timworstall/2013/09/26/how-to-beat-the-patent-trolls-european-union-style/#11f3167110d2

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Cédric Schepers
Patent trolls should be forbidden within the European Union. In my opinion, companies misusing patents as a business strategy are not acceptable within a free, but regulated, market economy. A patent troll normally acquires the patents from bankrupt or nearly bankrupt companies in order to make money out of it. After they have acquired the patent, they are not interested in commercializing…
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Patent trolls should be forbidden within the European Union.

In my opinion, companies misusing patents as a business strategy are not acceptable within a free, but regulated, market economy.
A patent troll normally acquires the patents from bankrupt or nearly bankrupt companies in order to make money out of it. After they have acquired the patent, they are not interested in commercializing the product or service. The only aim they have is to launch lawsuits against infringing companies or to hold the patent as such in order to make it possible for other companies to further invest and commercialize the product or service.

In order to proof my opinion, I would like to discuss some examples of innovations which were not successful at all. Let’s take the Google glass innovation. Google’s glass was intended to display quite a lot of information through a pair of glasses. Google invested a lot of money in this new technology but decided recently to stop the commercialization of this product.
Or take the Betamax video-recorder which was invented by Sony in 1975. Although the technology was extremely good, the product was never a commercial success.

In the pharmaceutical industry, the cost of research & developments is extremely high. Based on the very strict procedures to be followed by the pharmaceutical companies before the launch of a new drug, it can take more than 10 years for those companies to commercialize the product. The chance of success in quite limited, with a lot of innovations which will not come to a final consumable. Not only the effectiveness or also the efficiency of the product can be countered throughout the different phases in the research program. Also the strict security and health safety rules can lead to the stop of those research programs.

As the research & development activities for inventing such a product is considerable, and the risk of failure is important as well, it’s essential that those innovating companies have a legal framework which make it possible to invest in a correct and honest way.
Patent trolls are not interested in Research & Development. They are even not interested in bringing the product to the market. They even hold a patent with the only aim to make it impossible for other companies to commercialize the product.

References:
https://www.pwc.nl/nl/spotlight/assets/documents/pwc-het-waarderen-van-innovatie-2014-2-05.pdf
http://www.scriptiebank.be/scriptie/de-octrooiering-van-pharmaceutische-producten

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Kabanda Alice
Before answering the question if this new unified patent package seriously reinforces the risk of ‘patent trolls’ landing in Europe, I will first define more precisely the unified patent package and what it involves. The common patent court will be established by the EPO under the rules and procedures of the European Patent Convention. It will be possible to use any…
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Before answering the question if this new unified patent package seriously reinforces the risk of ‘patent trolls’ landing in Europe, I will first define more precisely the unified patent package and what it involves.

The common patent court will be established by the EPO under the rules and procedures of the European Patent Convention. It will be possible to use any court in Europe to start a case and it will all be decided by one court of law. This new patent court has unitary effect on all the participating countries. Indeed, there would only be a single uniform protection for all countries – which means that there will be a single renewal fee, a single ownership, and revocation as well as infringement proceedings will be decided by this court.

Even if it seems like a good idea in terms of simplification and speed of procedures, a lot of companies are against it for several reasons. The first one is that “this new court could, in some cases, allow the complainants to get a quick offense decision, with an injunction requiring the product sales ban in most of the European market before the validity of the patent in question has been determined”. This would stop organizations from making and selling their products across the entire European Union and could be enough to put them out of business. It would be a good opportunity for the patent troll because they will expect that the person they sue will think it less risky and cheaper to pay off their demands than to actually fight the cases and risk to lose everything.
The second reason is that this unified patent court “should also facilitate the sales ban in Europe of a product that contains a patented technology for which no license would be paid to the holder.” This may push the patent troll to ask huge remuneration for a trivial patent in a complex object.

For all these reasons it is likely that many patent troll will enter the European market which could have very disastrous consequences for companies. But are all companies that do not commercialize their product or service bad for the economy? We have to make a clear distinction between the patent trolls and the legitimate patent rights holders. Legitimate patent rights holders are known as non-practicing entities (NPEs). Even if they don’t actually commercialize a product or service, their business’s model is based on monetizing IP rights through licensing and technology transfer. They also play the role of an intermediary by connecting inventors with manufacturers and revealing the hidden value of some technologies. Therefore they have their place in the system. Thus, we have to find a way to thwart the abusive practices of patent troll without affecting the positive role some NPEs can play.

One of the things that can discourage the patent troll to enter the European market is that in the English system (the model that will be used for the unified patent court), unlike the US system, the loser must always pay everyone’s legal costs. As soon as one has issued the writ, he is liable for these defense costs if he should happen to lose the case. And these costs rise quickly. This is a good deterrent for the patent troll. However it still does allow people to fight cases that they think are worth the risks of other people’s legal bills.
Another change that can certainly help to minimize the risk of patent trolls is that the court will first evaluate the validity of the patent before hearing the infringement claim. I think that all these legislative changes, although these are not enough, can certainly put off the patent trolls to come to Europe.

Sources:

http://www.forbes.com/sites/timworstall/2013/09/26/how-to-beat-the-patent-trolls-european-union-style/

https://en.wikipedia.org/wiki/Unitary_patent

https://www.ipdigit.eu/2014/11/the-risk-of-patent-trolls-in-the-u-s-and-in-europe-a-sequel-to-a-never-ending-story/

http://www.lemonde.fr/technologies/article/2013/09/26/des-entreprises-s-alarment-de-l-arrivee-de-patent-trolls-en-europe_3485720_651865.html

https://fr.wikipedia.org/wiki/Patent_troll

http://www.computerweekly.com/opinion/Patent-trolls-must-not-be-allowed-to-encroach-on-Europe

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Joël Van Leuven
Unifying laws from different countries is a double-edged sword : on the first hand, there are the benefits aimed by the different governments, but on the other hand, there are always areas that the unified law cannot cover correctly, and that is exactly where malicious companies strike, which is in our case, the patent trolls. The purposes of the unified patent…
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Unifying laws from different countries is a double-edged sword : on the first hand, there are the benefits aimed by the different governments, but on the other hand, there are always areas that the unified law cannot cover correctly, and that is exactly where malicious companies strike, which is in our case, the patent trolls.

The purposes of the unified patent law are to promote innovation by reducing the complexity and the cost of the patent creation in Europe. But, in my opinion, the risks and the consequences coming from the patent trolls is so high that it can even erase the benefit. So I agree with the position of the open letter’s signatories, and I want to point out 3 main reasons.

First reason, the concept of letting malicious companies use laws to their benefit is unacceptable. Laws are made to help people when there is a conflict between them, they are made with the aim of social welfare. So even if trolls are using laws’ imperfection, there is no reason to let them act without punishment or change of the laws. Of course, such abusive use of the laws already exist in Europe, but in our case, it is a so openly and visible default that we can and must first correct this situation before accepting unified patent law.

Secondly, the more long the trolls survive, the more trolls will be created. If there will be a new opportunity in Europe, it will be more and more difficult to stop their progression. And moreover, pursuing trolls cost not only to the entrepreneurs, but also a lot to the country’s economy. In U.S., according to a report from the White House, 60% of the 2011’s lawsuits implicated patent trolls and consume about 29 billion of the U.S.’s economy.

Thirdly, trolls really harm the process of innovation. By claiming money or fee in exchange of the patent, they reduce so much the benefit of the innovator that he could not have enough budgets to go further in his project. Fighting against it is so exhausting in procedures (it can take years of court battles) and in money, and there is no guaranty that you can win… Only by thinking about this situation, that entrepreneurs can encounter so much money and time lost, can easily demotivate them to innovate. Start-ups is thus highly aimed by the trolls because of their need to innovate. By the way, it is not rare to see accusations on big companies that pay and use patent trolls to destroy the possible competition.

In conclusion, patent trolls’ effects are too dangerous to accept the unified patent law because they can go on the opposite direction and counter perfectly the benefits : they demotivate entrepreneurs to innovate and steal the economy of the country. A such obvious threat must be fix before going further, or at least, Europe must be first prepared to fight trolls efficiently.

Sources :
http://googlepolicyeurope.blogspot.be/2013/09/troll-proofing-europes-patent-system.html
http://www.lalibre.be/economie/actualite/les-patent-trolls-bientot-sur-le-marche-europeen-5261ffa83570314ade9eb46e
http://www.lemonde.fr/technologies/article/2013/09/26/des-entreprises-s-alarment-de-l-arrivee-de-patent-trolls-en-europe_3485720_651865.html)
http://www.lemonde.fr/technologies/article/2012/12/11/le-systeme-de-brevets-americain-largement-detourne-par-des-trolls_1804621_651865.html
https://www.eff.org/fr/issues/resources-patent-troll-victims

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Legros Nicolas
The unified patent system, which will be valid in, at least thirteen country members of the union is raising questions. It should bring down litigation costs for the business and might increase the number of patents filled in Europe, which in comparison with some other exemplary country in the matter is far behind. But, on the other hand, it brings…
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The unified patent system, which will be valid in, at least thirteen country members of the union is raising questions. It should bring down litigation costs for the business and might increase the number of patents filled in Europe, which in comparison with some other exemplary country in the matter is far behind. But, on the other hand, it brings up a practice that is not yet usual in Europe, ‘patent troll’, consisting in companies acquiring patent portfolio only to negotiate licences.
In my opinion, the arrival of patent troll on the European market is a real threat and is reinforced with arrival of unitary patent for several reasons. One I can talk about is the ‘bifurcation’ process which is a part of the unitary patent legislation, allows the litigation in intellectual property to be addressed in two ways; the validity of the patent or the violation or not of the patent in questions. Allowing to interrupt or prevent the commercialisation of a product without having to prove that the patent is valid, even if it is already present in Germany, it would give to patent trolls a large field of action.
Another one is, as said in the article, the power of risks of justice procedures . Even if, only professional judges rules on patent case and damages for infringement are lower in Europe than in the US, limiting the uncertainty and so the negotiation power of patent trolls, the threat still exists. Indeed, law procedures and the external costs that they implies are very expensive and the simple threat of bringing a case to justice can lead a firm to negotiate a settlement rather than embark in long costly procedures. More over the costs of damages for infringement does not constitute the only negative effect for the company. If a patent case is lost, the company loses the right to commercialize a product in the country regarding the patent infringement. So in the case of unitary patent infringement, at least thirteen countries including France, Germany and the United-Kingdom are concerned, giving patent trolls a big leverage power.

In that I agree with the position defend by the companies in the open-letter, the unitary patent seems to be a strong project which encourage innovation, efficiency, competition and sharing of knowledge. But the situation of this project as it is now may reduce his positives effects by encouraging patent troll to settle in Europe. But the harm is not done yet and Europe has still chances to modify the regulations, more precisely regarding the bifurcation system.

Sources
– BloombergBusiness. (29 june 2012). EU chiefs reach agreement on patent system, Van Rompuy says . Retrieved 18 novembre 2015 from http://www.bloomberg.com/news/articles/2012-06-29/eu-leaders-reach-agreement-on-eu-patent-system-van-rompuy-says.
– Google Europe blog. (26 september 2016). Troll-proofing Europe’s patent system. Retrieved 18 november 2015 from http://googlepolicyeurope.blogspot.be/2013/09/troll-proofing-europes-patent-system.html.
– L Lambrecht (19 octobre 2013). Les “patent trolls” bientôt sur le marché européen ? Retrieved 18 november 2015 from http://www.lalibre.be/economie/actualite/les-patent-trolls-bientot-sur-le-marche-europeen-5261ffa83570314ade9eb46e.

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Barthélemy Destrée
In reaction to economic downturn, the question of patents is crucial as they are at the basis of innovation. Indeed, having a patent ensure your company to possess a competitive advantage. Patent are, in this way, vital to convince companies to revive their economic activities. In the USA, some companies called “patent trolls” make of patent legislation their business by…
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In reaction to economic downturn, the question of patents is crucial as they are at the basis of innovation. Indeed, having a patent ensure your company to possess a competitive advantage. Patent are, in this way, vital to convince companies to revive their economic activities.

In the USA, some companies called “patent trolls” make of patent legislation their business by pursuing other companies for patent infringement. They actually detain some patents that are most of the times not well defined and ambiguous. This leads to litigation that force attacked companies either to pay for exploiting the patent or to be ready to go to court and resort to lengthy and expensive trials.

President Obama wants to limit these practices by enforcing US patent legislation. He wants “patent trolls” to define clearly what contain the patent they own and show clearly how other infringes it before suing them.

The new European patent legislation fosters patent troll. Indeed, patents are now proofs of innovation applicable in twenty-five countries whereas it was only valid in one country by the time. “Patent trolls” businesses are more likely to develop in this environment, which looks like US one. On another side, having a patent that is valid in whole Europe is probably more than necessary to be able to grow in countries like Germany and France. So there are some asset and some disadvantages of the new European patent laws.

I personally am not convinced that patent trolls businesses are much honourable. As Obama said “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 real question that should be asked to the Patent Offices concerns the reasons they granted the patent. I think Patent Offices should put some effort in the process of decerning patent .

I also totally agree with the big companies that signed the open letter. It is a conscious issue to not reproduce what happens in US market. Europe should take into account the consequences of this new legislation. One of them could be patent trolling and that would not be in my opinion an asset for Europe.

References :

http://googlepolicyeurope.blogspot.be/2013/09/troll-proofing-europes-patent-system.html

http://arstechnica.com/tech-policy/2013/09/patenting-everyday-life-business-method-lawsuits-are-growing-fast/

http://www.nytimes.com/2013/06/05/business/president-moves-to-curb-patent-suits.html?_r=1

http://www.lalibre.be/economie/actualite/les-patent-trolls-bientot-sur-le-marche-europeen-5261ffa83570314ade9eb46e

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Sebastien Duchateau
“Patent trolls” are according to me a big issue and attack directly the credibility of the original patent system. It’s a highly profitable act to acquire those “patent trolls”. It brings to companies, strength and some leverage in negotiations. We can understand why those companies are willing to buy as fast as possible “patent trolls” or NPE (Non-practicing entities).…
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“Patent trolls” are according to me a big issue and attack directly the credibility of the original patent system. It’s a highly profitable act to acquire those “patent trolls”. It brings to companies, strength and some leverage in negotiations. We can understand why those companies are willing to buy as fast as possible “patent trolls” or NPE (Non-practicing entities).

The original purpose of patents is to promote innovation through researches in R&D. This purpose is completely flouted by “patent trolls”, because the principal aim of the companies involved are not anymore to improve their R&D sectors but simply gain money and a competitive advantage. The result is a blocking market, where it becomes difficult to innovate and do some great researches in R&D peacefully.

The unified patent system cited in the open letter has some good and bad sides. It would for example reduce costs for companies by buying just one patent for the entire Europe region. Therefore, this will push firms to create and to innovate thanks to a huge protection zone. On the other hand, this would give even more incentive to use “patent trolls” because companies will have the opportunity to have a strong leverage power not only in one national market but also in other European countries.

That being said, I think that bifurcation is not necessarily a threat. It’s already implemented in Germany for many years, and actually it’s attractive. The advantages of bifurcation are that it’s fast and affordable. The UPC should include and use the bifurcation system as a powerful tool.

In USA, it’s a huge issue, more than half of total lawsuits are being linked to “patent trolls”. According to the open letter it’s not only professional judges like in Europe that are competent in those case. For these reason, I believe that Europe is at the moment a little bit more protected to the massive increase of patent trolls.

To conclude, I am convince that we need more transparency from companies using “patent trolls” to better judge if there are actually necessary or not. Finally, we need to strengthen the protection of firms that are attacked by those trolls. If we want more innovation it is necessary to defend those little companies against the abusing use of “bad patents”.

References:

Websites:

http://www.lemonde.fr/technologies/article/2013/09/26/des-entreprises-s-alarment-de-l-arrivee-de-patent-trolls-en-europe_3485720_651865.html

http://www.unified-patent-court.org/about-the-upc/22-category-i

http://www.managingip.com/Article/3407722/Dont-be-afraid-of-bifurcation.html

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Lambillon Camille
A patent is defined as the exclusive right granted by a government to an inventor to manufacture, use, or sell an invention for a certain number of years. [1] Therefore, it is also in other words a way of encouraging people to innovate. The unified patent system will concretely provide a unitary effect - uniform protection and equal effect – in…
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A patent is defined as the exclusive right granted by a government to an inventor to manufacture, use, or sell an invention for a certain number of years. [1] Therefore, it is also in other words a way of encouraging people to innovate.

The unified patent system will concretely provide a unitary effect – uniform protection and equal effect – in all the participating Member States. Consequently, by the means of one single request, the proprietor of a European patent will be able to get patent protection in 25 Member States of the European Union. [2] Even if nowadays it is actually only possible in 13 European countries, the new unitary patent system will provide valuable benefits, such as simplifying patent examination procedures and reducing the risk of divergent decisions among Member States. [3]
Besides this, legal injunctions in case of patent infringement will have consequences in a much larger market than before.
But the implementation of this new system is a bit delicate as it can provoke both positive and negative impacts.

Firstly, this policy enables to maintain the European competitiveness against the biggest players such as Japan or the US. In the same time, it reduced costs for obtaining a granted European patent (EP). The reduction cost is seen as coming from paying a single renewal fee for all member states, rather than several, and no translation costs. [4] Therefore, it makes the European market more attractive and brings some unexpected foreign investors as well as others more speculative, called the “patent trolls”.

The patent trolls are defined as the companies/people that attempts to enforce patent rights against accused infringers far beyond the patent’s actual value or contribution to the prior art. Patent trolls often do not manufacture products or supply services based upon the patents in question. [5] Therefore, we can say that the unified patent system opens the doors to this intrusive phenomenon. Patent trolls have directly negative consequences on the market as a whole. Indeed, it brings an insane competition; it, in a way, distorts the companies’ spirit. In the first instance, it makes businesses worry about abusive patent legislation rather than putting their efforts into creating new products and serving customers. Moreover, as the goal of those patent trolls are to suit companies to court, most of starts-up touched by this abusive use of legislation can not afford such expenditures and have to postpone their activities for several years.
It can thus clearly be seen that “patent trolls” is stifling innovation.

Moreover, as taking someone to court is really expensive in Europe and takes many years, it makes things easier for Non-Practicing Enterprises to act en to enter the European market. Indeed, as those procedures slow down the companies’ innovations and make them losing money and wasting time, companies prefer to settle directly with NPE. This seriously raises the leverage effect of NPE on the European market.

Finally, knowing that the victims of patent trolls paid $29 billion in 2011, a 400% increase from 2005 — not to mention tens of billions dollars more in lost shareholder value. [6] I am not surprised by the “open letter” written by the 16 multinationals. The goal here is not to criticise the EP system but more to improve it in order to benefit to everybody. According to me, it is important to grant only valid pattern. It means those which targets their first use; conferring upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time. [7] In other words those that serves a practical use and the promotion of an innovation rather than a financial gain.

REFERENCES

[1] http://dictionary.reference.com/browse/patent

[2] http://www.unified-patent-court.org/images/documents/enhanced-european-patent-system.pdf

[3] http://www.industrycoalition.eu/

[4] http://www.purdylucey.com/downloads/the_unitary_patent_in_europe_nov_2013.pdf

[5] https://en.wikipedia.org/wiki/Patent_troll

[6] https://www.whitehouse.gov/blog/2013/06/04/taking-patent-trolls-protect-american-innovation

[7] http://www.thefreedictionary.com/patent

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Gauthier Seny
As one of the advisers of the US President wrote on the blog of the White House: "Today, some of the largest innovators in high-tech spend more money on patent litigation and acquisition than they do on research and development for new products.,... It’s clear that the abuse of the patent system is stifling innovation and putting a drag on our…
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As one of the advisers of the US President wrote on the blog of the White House:

“Today, some of the largest innovators in high-tech spend more money on patent litigation and acquisition than they do on research and development for new products.,… It’s clear that the abuse of the patent system is stifling innovation and putting a drag on our economy.”

These sayings sum up rather well the problem with which Europe could be soon confronted.

Europe has given the green light for the single European patent system in December 2012 in order to stimulate innovation and growth. This unique patent system aims to facilitate administrative procedures for patent deposit but above all, significantly reduce the burdens on businesses and especially SME’s, which are poorly or not protected at all. Since then, a new significant threat is facing Europe; the patent trolls. A patent that might be effective in more than 13 member states will surely attract patent trolls. A potential arrival of patent trolls in Europe will undoubtedly have a negative impact on innovation in companies on the European soil. If patent trolls were to be in Europe, I think that the first victims would be the SME’s and that would be disastrous.
Furthermore, let remind us that patent trolls are the primary source of patents related trials in the US. Those trials would have cost the modest sum of 29 billion dollars to the American state. Preventing Europe to lose that much money in trials would be a good thing in favor of a strict regulation on patents.

I think we have to stay relatively realistic, if no legal measures are implemented to counter the patent trolls, it is certain that the Non-Practicing Entities’ (NPE) will make their entry into the European territory and inflict considerable damage on the european and non-european companies implanted in Europe.

For this, it is a good thing coming from the 16 large European and American businesses as Apple, Google, etc. to have written an open letter to the member states and several European institutions to warn them of these possible threats. I think this letter will sensitize the european authorities and that the competent authorities will take the appropriate measures to protect the european unique patent system from any misbehavior.

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Diana Munster
In my view, it is true that the entry into force of the united patent in Europe is likely to increase the risk of patent trolls landing in the EU market. A single EU patent will actually bring to an end the fragmentation of patent rules and authorisation in Europe. This fragmentation has been allegedly perceived as one of the…
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In my view, it is true that the entry into force of the united patent in Europe is likely to increase the risk of patent trolls landing in the EU market. A single EU patent will actually bring to an end the fragmentation of patent rules and authorisation in Europe. This fragmentation has been allegedly perceived as one of the biggest constraints for patent trolls to not thrive as much in Europe as they do in the USA. With this in mind, it is easily understandable that some firms have raised concerns about the possibility of facing an increased number of patent trolls in Europe.

However, one should bear in mind that US and European companies have a very different behaviour and culture when it comes to judicial procedures. The same goes for competition regulation and market rules. Arguing that the EU united patent will lead to the same situation than in the USA would be an over simplistic hypothesis applied to a complex issue. Back in 2013, Joaquín Almunia – former Commissioner responsible for Competition policy – speaking about the likelihood of seeing more patent trolls in the EU market argued that “you can rest assured that we are watching this space very carefully. DG competition will hold patent trolls to the same standards as any other patent holder ”. Being the watchdog of the single market, the European Commission is unlikely to let patent trolls freely thrive in Europe. On top of that, I concur with Think Thank Europa which assumes that a united patent would make life even harder for patent trolls as it will be much more expensive for them to sue innocent firms; thus reducing their ambition of behaving aggressively as they do in the USA .

With regards to the fear of big companies against patent trolls landing in the EU market, I tend to agree with them. I do not think that patent trolls firms constitute an added value for the market neither for the innovation. As I see, they are just trying to make as much money as they can out of the patent system. When one could argue that they boost the competition between firms, I would say that they are mostly very costly and time-consuming for the whole system. Moreover, all the money that goes to their pocket and their lawyers would be much better spent in Research & Development activities for instance. Considering the amount of money wasted annually in litigation procedures in the USA, one can seriously question the positive impacts of such firms for the market and the society.

Sources:

http://europa.eu/rapid/press-release_SPEECH-13-1042_en.htm, see online on 16th of November 2016

http://english.thinkeuropa.dk/node/105, see online on 16th of November 2016

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Rafaël Vansteenberghe
This subject is very sensitive as the race for patents is today integrally part of many businesses. To know if one should agree with the position of the companies that signed the open letter, we should first wonder if these trolls are really bad for the social welfare or if they can actually be part of our economic system. Then,…
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This subject is very sensitive as the race for patents is today integrally part of many businesses. To know if one should agree with the position of the companies that signed the open letter, we should first wonder if these trolls are really bad for the social welfare or if they can actually be part of our economic system. Then, I will explain why I personally think that the new European legislation will probably help the trolls to come in Europe even if this decision could induce more positive than negative impacts.

In my opinion, patent trolls are an obstacle to economic welfare even if one can think that these trolls could bring some arbitration in this “patent war”. Indeed, if two firms are competing in time to file a same patent, the fact that none of these firms is granted this patent could bring the two competitors on the same level of competition.
However, as said in the article, the costs induced by the legal procedure filed by the PAE against the company will of course be reflected on the consumers. Furthermore, the problem is that the PAE does not use the patent. Therefore, we can see the (potentially welfare-improving) innovation as sleeping and this cost is eventually paid by the consumer.
I think that these cons surpass the first reasoning and I have the same opinion as the companies that signed the open letter even if I admit that the patent race should be braked by an arbitration (by an European law ?) as some competitors, such as Apple or Samsung, spend a lot of money in legal procedures against each other and as these costs are also eventually reflected on the consumers.

Now, regarding the unified patent and Court in Europe, again, there are pros and cons.
We can see an obvious positive impact: this system could encourage innovation because of the reduced costs and time to patent something. However, it is obvious that this legislation give trolls a bigger playground and more facilities.
In my opinion, the former (multi-)patent system in Europe was not the only factor that kept the trolls quite away (for the moment). There are many other factors that make them prefer the American market: for example, since 1980’s,the United States accepted patentability of softwares or computers ; furthermore, in the 1990s, the USA accepted the patentability of business methods.(1)
The European law is more severe regarding the patentability of softwares or business methods. These factors have made the patentability easier, and we can observe a large increase of patent applications (and sometimes, “weak” applications made by non-specialized staff) in the USA since then.(1)
Therefore, the American market can seem more interesting for patent trolls.

So, to summarize, the future unitary patent and unified patent court will probably be one of the factors attracting trolls in Europe. However, it is not the only leverage responsible and I personally think that the positive impact of an unitary patent on innovation in Europe could surpass the negative side of such a decision.

Reference
(1)Janssens de Bisthoven, N. (2013). Patent Trolls and Abusive Patent Litigation in Europe: What the Unitary Patent Package Can Learn From the American Experience? Stanford – Vienna, Transatlantic Technology Law Forum. Online http://law.stanford.edu/, consulted on 17/11/15.

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VanvolsemJulie
Peter Detkin defined the patent troll, after the litigation implying Intell and the « patent troll » Tech Search LLC, as « someone trying to generate a lot of money, through a patent it does not use, does not intend to use and in most cases, never used” . Concerning the position of the open letter, there is no clear…
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Peter Detkin defined the patent troll, after the litigation implying Intell and the « patent troll » Tech Search LLC, as « someone trying to generate a lot of money, through a patent it does not use, does not intend to use and in most cases, never used” .

Concerning the position of the open letter, there is no clear position to take. We could observe this “patent troll situation” in two different viewing angles.

On one hand, like the majority and like the point of view taken in the open letter, we could approach patent troll like a negative organization which profit to every flaws of the systems without developing any innovation. In this case, trolls represent huge cost for the firms which are producing innovation.

On the other hand, we know that even if the troll’s behavior could appear as opportunistic, they’re not reprehensible. Indeed, patent trolls exist because the market which regulates the intellect property is imperfect and no the opposite . In this point of view, patent trolls could be perceived as intermediaries who want to optimize the efficacy of the patent market. In conclusion, we should wonder why patent troll exist, what is its suitable environment and how can we act on this environment to reduce the impact of the negative behavior of the patent trolls.

Concerning the question if the United Patent European package will reinforce the risk of patent troll landing in Europe we can answer yes. We know that patent troll’s growth is linked to the political, legal and economic environment role. The changes which occurred following the Unified patent Court (UPC) reform have changed the way to make it a more favorable environment for patent troll. However, to construct the new reform, a lot of procedure had been built learning from the American’s situation in order to reduce the abusive impact of the patent troll.

We will start to describe why these new regulation may be a “boon” for patent trolls. Concerning the UPC’s goals, we know that there are multiple advantage for innovative firm an especially for the SMES. The UPC had as objectives to reduce the cost and the time necessary for the procedure, to simplify it through central administration, to unify enforcement over the territories,… All of these benefits which aim to boost innovation in Europe (which is lagging behind America in term of research and industrial production) could also facilitate to the patent trolls development. In fact, Europe is now more attractive for patent trolls because only one patent provide a much bigger playground, because UCP doesn’t address compulsory license issues, because of the simplification of the patent creation’s procedure, because of the cost reduction,… All these features will conduce to an increase of the risk to see opportunistic behavior appear in Europe.
After that, we want to highlight the precautions taken by the UCP to discourage patent trolls to act opportunistically.

Firstly, we know that the patent trolls are most likely to growth as court costs are important. If these costs are higher than the royalties asked by the trolls, the defendant will prefer an agreement with the troll.
Secondly, knowing that European people have aversion to the risk, more we have the probability to loose in front of the court more we prefer to make a deal with patent trolls by giving royalties.
Therefore, the UPC took different precautions to fight against the element which will create a suitable environment for the patent trolls.

To begin, the UPC is a central administration. This centralization will decrease the forum shopping effect. Comparing to the American situation in which a claimant can choose the court which is likely to be most favorable to his request, in Europe there is currently only one court: the UCP. The decreasing of forum shopping completed by an improvement in the quality of the judge by using a strict training program will decrease the fault of judgment.

Many others measures could also discourage patent troll. UCP practice the “loser pays rule” when the losing party must pay for the lawyer fees what is discourage trolls to act without certitude to win. The limitation of joining multiple defendants will also permit to limit the action of the patent trolls which usually target multiple defendants at the same time to try to get royalties coming from different unlinked firms. Moreover, UPC practices the discretionary injunction unlike permanent injunction. The permanent injunction was one of the elements which favored the defendant to make a deal with trolls instead of trust court judgment. At the end, limited discovery and rule of “proportionality and fairness” will eliminates a major weapon of abusive behavior of patent trolls. At the end, UPC is also stricter in the patent agreement concerning the subject of most interest of patent trolls like software and business methods.

To conclude this reflexion, even if the new environment-driven by the UCP will increase the risk of seeing appear patent troll, Europe try to prevent all the factors that create a propitious environment for patent trolls based on the observations done in the USA environment. Therefore, I think that USA will stay the riskier place because it fosters a lot of element that permit to the patent trolls to behave opportunistically.

Bibliography
Belleflamme P., Slits L. (2010) Le développement du marché des brevets et la problématique des patent trolls., Regards économiques. View on : file:///C:/Users/Julie/Downloads/pattent%20troll.pdf
Gail E., (2013), Europe’s unitary patent to launch in 2015 – but will companies embrace it? , Science|Business. View on: http://www.sciencebusiness.net/news/76292/Europe%E2%80%99s-unitary-patent-to-launch-in-2015-%E2%80%93-but-will-companies-embrace-it
Janssens de Bisthoven N., (2013), Patent Trolls and Abusive Patent Litigation in Europe: What the Unitary Patent Package Can Learn From the American Experience? View on: http://law.stanford.edu/wp-content/uploads/sites/default/files/child-page/188509/doc/slspublic/janssens_wp19.pdf
Lambrecht L., (2013) Les “patent trolls” bientôt sur le marché européen ?. La Libre Belgique 19 octobre 2013. View on : http://www.lalibre.be/economie/actualite/les-patent-trolls-bientot-sur-le-marche-europeen-5261ffa83570314ade9eb46e

European commission, Unitary patent View on: http://ec.europa.eu/growth/industry/intellectual-property/patents/unitary-patent/index_en.htm

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Miao Liu
Patent trolls are harmful to the long-term innovation, what they do are opportunistic practices because they usually do not manufacture products or supply services. Patent trolls first get patents from innovators and waiting other competitors whose products using those patents are successful at development, and then get benefit from litigating. However, the unified patent system in Europe, which will maybe abused…
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Patent trolls are harmful to the long-term innovation, what they do are opportunistic practices because they usually do not manufacture products or supply services. Patent trolls first get patents from innovators and waiting other competitors whose products using those patents are successful at development, and then get benefit from litigating.

However, the unified patent system in Europe, which will maybe abused by patent trolls, have its significance with the potential to benefit both the creators and consumers. In order to reply the questions mention above, several aspects should be considered to analysis the possible impacts.

In my opinion, the unified patent system will not reinforce the risk of “patent trolls” landing in Europe. First, once a company starts “patent troll” procedure, it will obtain a legal injunction in a single country for now. But the legal injunction even in a single country market is deadly harmful for a company who wants to enter the European market. Second, compared to the US procedure and the culture of litigation, litigation in Europe has much more powerful ability to deter “patent troll”. Third, Europe has a loser pays costs regime. So loser will face severe financial consequences due to the high cost in litigation.

Considering the open letter signed by 16 U.S. and European companies, I do agree with it because these companies give concrete advice to amend the unified patent system to mitigate the potential abuses. As a result, it will allow operating companies to focus on innovation rather than litigation, decrease the costs of obtaining patent protection and increase competitiveness in Europe.

In conclusion, the unified patent system plays an important role in fostering the European innovation and development while it is well regulated. Only when the unified patent system and the Unified Patent Court operating well, “patent trolls” can be controlled effectively in a normal level.

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Ysaline Nobels
The intellectual property in general has always been in the centre of multiple debates. But, first, what is it exactly? A patent is a type of intellectual property. It is “a grant made by a government that confers upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time.”…
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The intellectual property in general has always been in the centre of multiple debates. But, first, what is it exactly? A patent is a type of intellectual property. It is “a grant made by a government that confers upon the creator of an invention the sole right to make, use, and sell that invention for a set period of time.” [1] It is useful to encourage technological innovation, to promote competition and investment, to provide information on the latest technical developments and finally to promote technology transfers. [2]

In Europe, there is a project to introduce the system of unitary patent and unified patent court. This system will extend the legal injunction of an innovation to at least 13 Member States, including the three largest countries of Europe, which are Germany, France and the United Kingdom. There is a big fear that the introduction of this system will reinforce the risk of “patent trolls” landing in Europe.

We first defined what the patents are, but what does “patent trolls” mean? Alain Strowel defines this term as “companies that acquire patent portofolios not to exploit them but to negotiate licenses, potentially under the threat of an action for patent infringement”. [3] We also speak of “Non-Practicing Entities” (NPE). This phenomenon is mainly present in the United States, but, with the introduction of the system of unitary patent and unified patent court, some companies fear that this could be land to Europe. Those 16 companies wrote an open letter criticising this new system.

To express my opinion about this, I first want to focus on the role of the patent. Like I mentioned before, patents are used to encourage innovation. Patent trolls, on the contrary, are detrimental to innovation. Like one of the advisers of the President Barack Obama wrote, “the abuse of the patent system is stifling innovation and putting a drag on our economy.” Not only big firms like the ones who wrote the open letter suffer from this phenomenon. Start-ups are also big victims of it. In the US, a lot of companies prefer to negotiate a license instead of going to court to sue the NPE. This license means of course that the companies have to disburse a lot of money, which start-ups cannot afford.

As far as the European unitary patent, I think this could attract a lot of investors to Europe and promote innovation. With this system, firms could, on the one hand, receive a patent, which would protect their innovation in at least 13 countries of Europe. On the other hand, a unified patent system could simplify the patent regime and could be very useful for firms present in different European countries.

In conclusion, I think the unification of a patent system in Europe is a great idea. But, it could bring the risk of patent trolls, even though I don’t think that this phenomenon could be as big as in the US. The open letter of the 16 firms is then totally justified. To avoid the landing of patent trolls in Europe anyway, the introduction of the new system should come along with some stricter rules. Firms, which obtained a patent, should prove, on a regular basis, that they really exploit them.

[1] http://www.thefreedictionary.com/patent
[2] Belleflamme, P. (2015). A primer on intellectual properties (slides). Not published, Louvain School of Management, Louvain-la-Neuve.
[3] Strowel, A. (2013). Will “Patent trolls” soon appear on the European market?
[4]Lambrecht, L. (2013). Les “patent trolls” bientôt sur le marché européen?. La Libre Belgique

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Bostyn Sophie
First of all, the aim of patents is to promote innovation by giving an intellectual property for a limited time (usually 20 years). Patents make innovator’s investments profitable and they prevent duplication of effort by sharing knowledge and disclosing their invention. However, it is sometimes possible that patents have reverse effects when people use them not in order to protect their…
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First of all, the aim of patents is to promote innovation by giving an intellectual property for a limited time (usually 20 years). Patents make innovator’s investments profitable and they prevent duplication of effort by sharing knowledge and disclosing their invention.

However, it is sometimes possible that patents have reverse effects when people use them not in order to protect their business and innovate even more but when they use them only with the aim to sue companies for patent infringement to easily make a lot of money. These companies/people are called patent trolls.

According to a video published by General Patent Corporation, patent troll is nothing wrong and it’s only a natural consequence of detaining patents. Indeed, they submit the following arguments: patent is not needed to practice an invention; it’s ok to sue for patent infringements; the value of a patent is not the same of the value of the patented technology; patent system is not fair and the patent is not a tax on innovation and finally, patent trolls anticipate innovations. (1)

In my opinion, patent trolls can reduce the incentives to innovate (because of the fee they are asking for the license for example) and thus reduce the social welfare. In fact, large corporations loose time and money in trial instead of focusing on R&D. Moreover, nowadays, they are recognized as a huge problem in USA. So, that is why I think that patent trolls do not create value for society and only exist to make money as they prevent other companies to enjoy fully of these patents.

In which concern the unified patent package in Europe, I think that on the one hand, it can have a positive effect on firms in reducing patent costs and make easier the procedures. Furthermore, a stable legal system can create a favorable climate for investment in R&D and innovation and thus attract innovative businesses and increase competitiveness. (2)
But on the other hand, I think that it can effectively bring patent trolls in Europe and thus triggers the contrary effect and can perhaps lead some businesses to move to countries not covered by the UPC to avoid the risk of a single invalidity decision revoking patent rights across all of Europe. (3) That’s why I understand that big companies like Apple, Adidas, Google, Samsung, etc are afraid and signed the open letter which explains their worries about bifurcations that can cause injunction gaps and their worries about injunctions and also suggests solutions. (4)

Nevertheless, we have to consider that patent systems in United-State and Europe are not the same. Indeed, in USA, it is easier to get a patent because policies are less strict than in Europe. There are differences in mind. Indeed, in USA, they don’t care if the patent is for a useful invention or not. So, there are certainly more invalid and broad patent in US that make companies more likely to be sued. Moreover, as said by Alain Strowel, 60% of cases in the US are judged by a jury, while in Europe there are only professional judges rule on patent cases, which can limit uncertainties caused by juries.

Another point that I’d like to emphasize is that software patents, very present in US, lead to many litigations due to patent trolls. Indeed, software patents are often overly broad, with unclear property rights or both. That’s why they are often invalid because they cover something already invented or are an obvious improvement over what was previously invented. (5) However, in Europe, there are far less software patents due to stricter rules on it. For example, the article 52 excludes ‘programs for computers’ from patentability. (6)

So, to my mind, patent trolls are likely to arrive in Europe due to the unified patent but they will probably not spread as much as in US thanks to stricter rules when granting a patent. Nevertheless, it is very important that judges are aware of the existence of patent trolls to be more vigilant. It would also be necessary to establish new rules to distinguish NPE from other companies, for example, by requiring more transparency about their business activities. We can also establish procedures to eliminate some patents when it is clear that they are not wisely use by the firm.

References:
(1) http://www.generalpatent.com/media/videos/patent-troll
(2) http://vbo-feb.be/fr-be/Dossiers/Innovation-RD/Propriete-intellectuelle/Brevet-unitaire-europeen–La-Belgique-doit-ratifier-rapidement-laccord-sur-la-juridiction-1/
(3) http://ipkitten.blogspot.be/2013/03/bifurcation-of-european-patent.html
(4)https://docs.google.com/a/student.uclouvain.be/file/d/0Bw8Krj_Q8UaEd3U1dUJ3SVp6LTQ/edit
(5) https://www.washingtonpost.com/news/the-switch/wp/2013/09/03/the-patent-troll-crisis-is-really-a-software-patent-crisis/
(6) https://en.wikipedia.org/wiki/Software_patent

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Isabelle Stroobants
Patents have always been subject of debates. With a new unified system, a lot of elements have to be taken into account. Indeed, such a system would have positive and negative consequences. The aim of a patent is to promote and protect innovations and companies. Companies are making huge investments in R&D to develop new technologies and thanks to patents; anyone…
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Patents have always been subject of debates. With a new unified system, a lot of elements have to be taken into account. Indeed, such a system would have positive and negative consequences.

The aim of a patent is to promote and protect innovations and companies. Companies are making huge investments in R&D to develop new technologies and thanks to patents; anyone can use the patented technology just by paying the patent holder a fee. But in a unified system, patent trolls (NPE) are disrespecting this idea of sharing and rewarding. Indeed, they are filing patents with no intention of using their innovation but only to make more money. They are simply waiting for someone to commit patent infringement so they can file a legal injunction against them. We could say that this is a strategic move because this way, patent trolls are ahead of others in terms of new technologies and innovations but they actually just want to prevent others from using this technology for free.

I believe that a patent system is needed, but a unified system would in my opinion bring these patent trolls on the European market.

A unified system is a good thing because it would reduce the cost of patenting an innovation; it would enhance competitiveness in Europe and support long-term growth of innovative industries. This would bring new investors on the market but not only. With this system, the patent filling procedures would be harmonized between thirteen countries and legal injunctions in case of patent infringement would be valid in a much larger market than before, which would definitely bring Non-Practicing Enterprises (NPE) in Europe. Moreover, the costs of a lawsuit in Europe are very high and it can take years before it is over. This is, companies’ innovations are slowed down and they are losing money so they will have more incentives to directly settle with the NPE. This way, patent trolls have leverage on the companies and can get what they want.

To conclude, Patent trolls would have negative consequences on our economy, such as a slow down of innovation, a reducing of the investments in R&D and even a discouragement of entrepreneurs. I believe that the letter wrote by the sixteen companies is totally legitimate. The new patent system has great objectives and will improve the European economy but they want to regulate the system by improving it and they are totally right. They want to make sure that it will mainly stimulate innovation and investments rather than encourage patent trolls to come to Europe.

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Hugo De Brouwer
The introduction of a unified patent system will create a single standardized patent system in 13 European countries, including the most important markets like Germany, France or the United Kingdom. This means that the patent filling procedures are going to be harmonized between those countries but moreover, the legal injunctions in case of patent infringement will be valid in a…
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The introduction of a unified patent system will create a single standardized patent system in 13 European countries, including the most important markets like Germany, France or the United Kingdom. This means that the patent filling procedures are going to be harmonized between those countries but moreover, the legal injunctions in case of patent infringement will be valid in a much larger market than before. This situation is a bit delicate to handle because it could induce both positive and negative effects.

First of all it is important to remember that the goal of the European Union is to create a large common market. So it’s not surprising that the 13 largest European economies are trying to unify their patent policies. The simplification of the European patent regime could have a great impact on the whole European economy because it would simplify the task for foreign investors and encourage them to invest in the European economy. The unified patent system will reduce the costs of patenting an innovation and also reduce the time spent doing paperwork, which will give entrepreneurs more time to innovate and create real value.

However, the unified patent system will not only attract foreign investors, it will also attract Non-Practicing Entities (NPE) better known under the name of patent trolls. Their impact on the economy is far from being great. They acquire patents they don’t use and try to negotiate licences under the threat of legal action for patent infringement. Their whole business is based on judicial blackmail. The consequences of this are pretty important on the economy, it slows down the innovation, it reduces the money invested in R&D and it also discourages venture capitalists to invest in innovative ideas. All those potential consequences are being feared by the biggest multinationals worldwide and that’s why 16 of them wrote an open letter to the unified patent system state members. Moreover, this also concerns the small entrepreneurs who are trying to launch their own start-ups. The costs of legal actions against patent trolls are too high for them so they can’t afford taking any risks and are forced to settle with them. This shows how patent trolls also avoid entrepreneurship.

Lets see for what reasons the introduction of the unified patent system will encourage the venue of patent trolls on the European market.

Firstly, costs of defence in Europe are very high and the legal procedures can take years. During all this time, the innovation is slowed down. Entrepreneurs will not continue investing in innovation if they are not sure they will be able to use it. Because of those uncertainties about the costs and the length of the legal procedures, companies are tempted to settle directly with the patent trolls.

Secondly, the damages awarded can be much higher with the unified patent system than it used to be before. The damages awarded in Europe are in general lower than those in the United-States but now that one legal injunction for patent infringement is valid in 13 countries the damages awarded for one injunction will be much higher. This represents a much higher risk for companies and once again they will be tempted to directly settle.

Finally, the defence and procedure costs are in Europe most of the time supported by the users. This means that if the company is not entirely sure that they are going to win they will not take any risks and will settle with the patent trolls.

To conclude, I would like to say that I completely agree with the 16 multinationals that wrote an open letter about the risks of the unified patent system. I would also like to point out that they don’t want to suppress the new system; they are just giving some advices to improve it. The goal here is to make sure that the new patent policy will really stimulate innovation and investments in R&D and not encourage patent trolls to come in Europe. I think it is great that private and public actors are working together in order to improve the European economy.

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Grégoire Leplat
The patent trolls are companies that buy patents for the unique purpose to sue anyone who would violate them. They use patents as leverage to extract money to other firms. We call these companies Non-Practicing Entities' (NPE) or "Patent Assertion Entities" (EAP). First, I think the "patent trolls" does not bring anything positive in our society. These companies prevent innovation by…
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The patent trolls are companies that buy patents for the unique purpose to sue anyone who would violate them. They use patents as leverage to extract money to other firms. We call these companies Non-Practicing Entities’ (NPE) or “Patent Assertion Entities” (EAP).

First, I think the “patent trolls” does not bring anything positive in our society. These companies prevent innovation by bearing patents they do not intend to operate. They therefore highly penalize innovative businesses.

I think the “patent trolls” will not be profitable in Europe. European justice is highly regulated and operates in another way that American justice. It is also known that in America it is possible to sue anyone for any reason, and this with very little risk of losing. This is not the case in Europe. So I think if these patent trolls are located in Europe, they will have much less success than in America.

I fully agree with the open letter. Patents are used to promote innovation by sharing knowledge. But the patent trolls prevent this. They inhibit innovation using costly litigation threats to claim their questionable patents. Europe needs to do what is in its power to prevent or greatly limit the arrival of patent trolls in Europe.

http://www.lalibre.be/economie/actualite/les-patent-trolls-bientot-sur-le-marche-europeen-5261ffa83570314ade9eb46e
http://googlepolicyeurope.blogspot.be/2013/09/troll-proofing-europes-patent-system.html

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Léopold Van Oost
The subject of patent is a very sensitive one in the world of innovation. As explained by Professor Belleflamme in his class, they first appeared with the Great Exhibition of London in 1851 and since then, two opinions are facing each together. Some think that every kind of invention has to be patented. Their main argument is the fact that R&D…
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The subject of patent is a very sensitive one in the world of innovation. As explained by Professor Belleflamme in his class, they first appeared with the Great Exhibition of London in 1851 and since then, two opinions are facing each together.

Some think that every kind of invention has to be patented. Their main argument is the fact that R&D is very costly for the companies so patent are needed to avoid the loss of those investments. Other people think that it would be better of if there were no patent because it is a restrain to competition and free trade.

I believe that the system of patent is a good system that is needed to enforce innovation (the fact that you can protect your idea is, in my opinion, an incentive to innovate), nevertheless it seems that there is a problem with companies called “Patent Trolls”. In simple terms, a Patent Troll is a company that buy some patents that she is not going to exploit; it will be a Non Practicing Entity (NPE). Thanks to those patents, the company will attack other companies for illegal use of those. In his strictest sense, this is not an illegal activity.

I think that there are big points that “protect” Europe from Patent Trolls: it is the different laws and the way of the justice work. It is well known that in the U.S. it is very easy to attack someone for any reason with quite limited risks. Furthermore, those cases are most of the time judge by juries, so by standard people, that do not always have the full competencies on the subject.
In Europe, those cases are judge by professional juries and there is the principle that the looser have to pay for the winner. If the company that attack another one is discover as being a Patent Troll, then, maybe, the judgement of the judges will be against the NPE. So, I believe that there is less risk of Patent Trolls in Europe.

To end up, I totally agree with the position of the open letter, I think it is an abusive use of the laws that disrupt the competition.

References:

– Belleflamme, P., LLSMS2041, Economics of Innovation, Lecture 7, 2015, LSM.

– Wikipedia, “Patent Troll”, https://en.wikipedia.org/wiki/Patent_troll, page consulted on the 15/11/16.

– Google Europe Blog, Open Letter: “Troll-proofing Europe’s patent system”, http://googlepolicyeurope.blogspot.be/2013/09/troll-proofing-europes-patent-system.html, page consulted on the 15/11/16.

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Sophie Delcoigne
The purpose of the patent system is to promote innovation by disclosing inventions, sharing knowledge. Disclosing this knowledge increases social welfare, the technology can be used by other companies, paying a fee or royalties to the patent holder, and can improve products or services, while rewarding patent holders for their R&D investments. Patent trolls, however, file patents with no intention of…
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The purpose of the patent system is to promote innovation by disclosing inventions, sharing knowledge. Disclosing this knowledge increases social welfare, the technology can be used by other companies, paying a fee or royalties to the patent holder, and can improve products or services, while rewarding patent holders for their R&D investments.

Patent trolls, however, file patents with no intention of using their invention, but to make money out of people using an invention protected by their sleeping patents (a sleeping patent is a patent consciously not being used by the patent holder, directly or through a third party, in this case for strategic reasons). On the one hand, patent trolls are ahead of others in anticipating new technologies or innovations. On the other hand, they have no intention to develop the technology, they want to prevent others from using it for free.

Their goal is to make money out of their patented ideas used by others. This can lead to reducing social welfare: companies would be sued by patent trolls for using a technology trolls own, and the price to pay to settle or to go to court can be high. Such a cost is not negligible, therefore the incentive for the company to invest in R&D is reduced because they already paid a lot for the use of a specific technology, and they could find a technology already patented and being sued again. Of course, these companies should have an eye on technologies already patented, to try to avoid such lawsuits.

A unified patent system in Europe would “promote efficiency and long-term competitiveness. “ (troll-proofing Europe’s patent system, url below)

I think this sentence is true when companies invest in R&D and make their inventions become reality by implementing them on products and services available to customers. Moreover, such a unified patent system would make the filing of patents much cheaper for companies, thereby increasing the incentives for firms to file more patents, and thus, to invest in R&D. However, patent trolls might benefit from this since with one patent filed, they would be able to sue companies all over Europe. One patent filed would cost less than filing a patent in several countries (at least 13 member states including France, Germany and the UK).

For the social welfare of Europe, I think patent trolls might be a threat. Implementing a unified patent system in Europe would, in my opinion, attract patent trolls on the continent. I also agree with the open letter from big companies, who ask Europe to change its rules by asking, among other things, that patents filed must be valid. However, benefits from a unified patent system on social welfare could be great. The “threat” of patent trolls (decrease in social welfare) must not be bigger than the increase in social welfare due to “honest” people filing patents (=will use the patent).

Sources:
http://googlepolicyeurope.blogspot.be/2013/09/troll-proofing-europes-patent-system.html
https://www.quora.com/What-are-sleeping-patents
https://en.wikipedia.org/wiki/Patent_troll

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Antoine de Halleux
"Patent trolls" are, acording to me, a bad thing in the innovation process. It is true that in a certain way, if they can get a patent, it's because they are more advanced in the technological process than the other companies. But on the other way, they don't use these patents in the means they were made. Patents exists to…
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“Patent trolls” are, acording to me, a bad thing in the innovation process. It is true that in a certain way, if they can get a patent, it’s because they are more advanced in the technological process than the other companies. But on the other way, they don’t use these patents in the means they were made. Patents exists to encourage innovation. The “patent trolls” use them only to make money. They abuse of this patent system.

According to me, “patent trolls” will inevitably appear on the european market, as it can be a very lucrative job, even if our environment is different than in the US. Therefore, I think that Europe has to control the firms who wants a patent in order to avoid those “trolls”. For instance, each firms getting a patent should give their objectives or uses of their patented technology. Therefore, the “patent trolls” will have to use theirs in a commercial way.
Thus, I totally agree with the firms signing the open letter, as “patent trolls” only take the advantage of the protection of the innovation but don’t use them.

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David Vanraes
The regulations for European unitary patents entered into force from January 12th 2013 but there are still a lot of countries from the group of the potential 25 that haven’t ratified yet the unitary patent agreement. Among these countries, there is Germany, United Kingdom, and the Netherlands. Countries as Belgium, Austria and France have already ratified. Therefore we cannot see…
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The regulations for European unitary patents entered into force from January 12th 2013 but there are still a lot of countries from the group of the potential 25 that haven’t ratified yet the unitary patent agreement. Among these countries, there is Germany, United Kingdom, and the Netherlands. Countries as Belgium, Austria and France have already ratified. Therefore we cannot see yet what the impact is of the unitary impact. We can speculate about what the risk on patent trolls could be if all the countries would ratify the agreement.

To be able to say that patent trolls can become more present in Europe by launching the unitary patent, we first need to define what patent trolls exactly are. Wikipedia defines it generally as a plaintiff (person or company) that attempts to accuse another company or person of infringing a patent far beyond the normal value of the patent. This is one of the many existing definitions. It is known that there is no precise accepted definition of what a « patent troll » really means. Therefore it is very difficult to identify patent trolls and to take them in court. (Janssens de Bisthoven, 2013)

I think personally that the risk for more patent trolls will not increase a lot after the complete ratification of the unitary patent system in all the 25 EU-Countries. There are several reasons to explain that:

Firstly, it is more difficult to get patents in Europe than in US because of the differences in interpretation of the patentability conditions. The U.S. « non-obviousness » standard seems to be laxer than the European « inventive step » requirement, and the U.S. concept of « utility » is much broader than the European « industrial application » standard. (Janssens de Bisthoven, 2013)

Secondly, follow Janssens de bisthoven the holdup or troll problem is particularly significant in component-driven industries notably information technology (IT). By coincidence there is a fundamental difference between US and EU patents. The software and business methods are questionable patent subject matter in the EU but are largely accepted in the United States. Therefore the American system is a much more attractive playground for patent troll activities.

Thirdly, in the US In comparison with US, the EU has a « losers pays cost regime », which means that the loser in court pays the other party’s attorney’s fees. In the American system, each party has to pay its attorney fees. Therefore the motivation for patent trolls in the United States of America is much higher since the patent troll will not have to pay the other party’s attorney’s fee costs if he looses. Furthermore, the motivation for a patent troll to bring an infringer into court is higher in the US since the damages awarded at the end of proceedings for infringements are much higher in the US than in Europe. (Wikipedia)

For these 3 reasons I can only partially understand that, in the open letter (September 26th 2013),of the several companies to the European institutional entities, they say that they complain about a threat of more patent trolls with the new European patent system explained. Since they say that patent trolls don’t have a business interest and that therefore consumer harms should be considered. Follow the letter the main threats are BIFURCATION and INJUNCTIONS. Injunction is a valid argument but only when the unified patent system would increase the number of Patent Trolls. The second threat, Bifurcation, is follow the open letter a problem that happens because the Unified patent court (UPC) agreement allows infringement questions to to be decided by different courts in the same case, but gives little guidance as to when or how this should or should not be done. Therefore plaintiffs could obtain a quick infringement ruling. Follow the Jannssens de Bisthoven (2013), this is not really the fundamental problem with patent trolls. He says that the main problem is not the patent problem themselves but the overburdened patent offices, the resulting “weak patents” granted and the “overvaluation” of patents.

In a paper about Patent Trolls (Janssens de Bisthoven, 2013), the author has a moderated message to Europe; « Save the trolls but sanction their abuses ». What he wants to say through this statement is that with the new unitary patent package there will changes that can make patent trolls become stronger in Europe. But since patent trolls are legally accepted and follow several definitions of patent trolls, every patent plaintiff can be somehow considered as a patent troll, we should rather save the patent trolls but sanction their abuses through more solid juridical practices. For example, avoid overvaluation of patents and avoid overburdened patent offices.

Besides the problem of defining exactly what patent trolls are, we can conclude, that the European unified patent system relative to the US system will not increase the threat of patent trolls substantially after a complete ratification of all the considered EU-countries. Furthermore the open letter of the several companies about patent trolls can seem alarming but is not making a pertinent statement about the fundamental problems of the patent trolls.

Sources:

Academic Papers:
Nicolas Janssens de Bisthoven (2013) Patent Trolls and Abusive Patent Litigation in Europe: What the Unitary Patent Package Can Learn From the American Experience?

Websites:
https://en.wikipedia.org/wiki/Patent_troll

Articles:
Jens Raabjerg Olesen (23 july 2014) Are the patent trolls here to get us?
http://www.hoiberg.com/en/about-us/articles/are-the-patent-trolls-here-to-get-us/

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Francois Lutz
Patents have always been the source of intense debates and its legitimacy has been discussed since at least The Great Exhibition in London, 1851. While some people believe that ideas should be protected at all costs, others argue that the competition is good for the market total surplus. With our current, fast-moving and technology-intensive economy, the patent question is even…
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Patents have always been the source of intense debates and its legitimacy has been discussed since at least The Great Exhibition in London, 1851. While some people believe that ideas should be protected at all costs, others argue that the competition is good for the market total surplus.

With our current, fast-moving and technology-intensive economy, the patent question is even harder to answer. While R&D costs are very high for advanced technology, some inventions are crucial for any electronical devices nowadays and would hinder the development of many great things.

Nevertheless, moving onto the “patent trolls” subject: I strongly agree with the 16 firms signing the open letter and the blog article by Gene Sperling. I believe that patent trolls’ actions are morally wrong, while legal.

I believe that their actions are encouraged by the US law system that is different from ours in Europe. First of all, Europe has a “loser pays costs regime”, which is not the case in the US. Secondly, the concept of punitive damages exist almost exclusively in the US, and it applies to companies mostly. Punitive damages are extra monetary compensation to deter others to engage in a conduct similar to which was just condemned.

All in all, a trial in the US can be very expensive, even if the defendant wins the case. This is a huge weakness in the US system that patent trolls are exploiting, in order to somewhat “blackmail” huge companies and ask for fees that are lower than the expected cost of the trial (regardless of a win or lose situation, defending a case can cost millions of dollars).

While I agree that the UPC will increaze the size of the infringement (more consumers would be concerned) and the bifurcation process can be used in favor of patent trolls, I’m still confident that Europe is better prepared against the patent trolls.

———————————–

References:

Paul Belleflamme, LLSMS2041: Economics of Innovation, Lecture 7.

https://www.whitehouse.gov/blog/2013/06/04/taking-patent-trolls-protect-american-innovation (Retrieved November 11st, 2015)

http://legal-dictionary.thefreedictionary.com/punitive+damages (Retrieved November 11st, 2015)

The IPKat : Bifurcation of European patent litigation: a practitioners’ perspective http://ipkitten.blogspot.be/2013/03/bifurcation-of-european-patent.html , (Retrieved November 11st, 2015)

http://www.lld-law.com/2006/03/patent-trolls.html , (Retrieved November 11st, 2015)

“Courts outside U.S. wary of punitive damages”, by Adam Liptak, International Herald Tribune, March 26, 2008, http://www.iht.com/articles/2008/03/26/america/damages.php , (Retrieved November 11st, 2015)

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Jan Kock
In the present article, Alain Strowel discusses the possibility that the creation of a unified European patent, which is currently still awaiting ratification from several of the 13 participating EU member states, might increase the risk that so-called non-practicing entities (NPE’s) or “patent trolls” emerge and cumber the innovative process in Europe. In particular, the author refers to a common…
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In the present article, Alain Strowel discusses the possibility that the creation of a unified European patent, which is currently still awaiting ratification from several of the 13 participating EU member states, might increase the risk that so-called non-practicing entities (NPE’s) or “patent trolls” emerge and cumber the innovative process in Europe. In particular, the author refers to a common letter of 16 large EU and US companies, who admonish that the larger degree of legal integration that a single European patent will create might indeed lead to an increasing appearance of “patent-trolls”, as it is already the case in the US. My contribution to this discussion will be two-fold. At first, I examine the notion of “patent trolls” from an economic point of view, in particular to disentangle the economic functioning of these entities from their negative connotation. Second, I explain why I think that the EU seems better prepared than the US to prevent “patent trolls” from illegitimately hindering companies in their daily business.

To begin with, the moral arguments against NPE’s, which are often employed by politicians and company executives alike to condemn the practice of speculatively buying patents and suing firms which disregard these titles, seem not justified to me. Instead, I think that in market economies, the benefit to society that arises from a particular action might not always be evident in a straightforward way. Indeed, as already argued by the philosophers Bernard Mandeville and Adam Smith in the 18th century, superficially selfish and unproductive activities, such as the filing of lawsuits based on intellectual property that was fostered by another party, can increase overall societal utility. Hereby, I refer to the functioning of NPE’s as buyers of patents from small individual patentees. As exemplified by the decades-long lawsuit of the inventor Robert Kearns against the three largest US automobile producers, taking notice of one’s rights and seizing advantage of it constitutes a lengthy and very costly procedure vis-à-vis opponents that are equipped far better in financial and personal terms. Hence, NPE’s principally just maintain the incentives for small entrepreneurs to engage in innovation by compensating them for their patent titles and then focusing on the most profitable cases. With the above considerations in mind, it is also not surprising that the mentioned common letter was signed exclusively by enormous multi-national enterprises, which of course regard these individual interests as mere nuisances in their daily business. Admittedly, there might also exist examples of NPE’s that conduct practices which are no longer in concordance with societal goals. This is especially the case when evidently pointless lawsuits are just filed to achieve infringement measures against defendant companies, which are then often forced to negotiate with these NPE’s off court, just to assure that daily production will not come to an unwarranted halt.

So in order to check whether this abusive type of “patent troll” might also appear on the European scenery, I consider it worthwhile to compare the reasons for the emergence of these entities in the US with the current European situation. In his work on what European patent law can learn from the American experience, Janssens de Bisthoven (2013) mentions three particular developments that have contributed to the rise of the “patent troll” overseas.
First of all, he alludes to the stark increase in US software patents since the 1980’s, which also increased the chances of NPE’s to profit from the implicit difficulty to clearly demarcate patent titles in this field of intellectual property. However, in contrast to the US, EU law acknowledges these difficulties, and hence only grants software patents under very narrow conditions.
Second, Jannsens de Bisthoven relates to unclear US court decisions on the patentability of business methods, which increased the possible breadth of patents, and once again the profit opportunities for NPE’s. As above, the EU’s position seems to be much more cautious and conservative here, since business methods are currently not protected by European patent law, and will neither be protectable under the unified patent system.
Third, Janssens de Bisthoven also mentions the high litigation costs in the US, which have made the suability such a profitable business for NPE’s. While Mr. Strowel already mentions in his text that the sums fined or reimbursed in Europe are far lower than in the US, from a legal perspective there may indeed exist several weak spots of a single European patent. Since different legal traditions merge in current EU law, it is not always clear how patent law might be interpreted by different courts. Furthermore, as it is already the case in the US, “patent trolls” might prefer to choose those regional or local courts which are known to file infringement procedures quite fast, which increases their extortionate leverage vis-à-vis corporate defendants. However, as mentioned in an article on IPKAT, there always exist strategies for firms to protect themselves from “patent troll” on the European market. Some imply that national patents are still obtained for certain products country-by-country, which clearly provides no progress over the status quo. However, this procedure might at least smoothen the transitory phase, and give the respective legal institutions the necessary preparation and training to become accustomed with the harmonization of legal practice within Europe. Others base on the advice that firms should act cautious and hence aim to settle legal issues with unclear patent rights in advance to a start of production or sales. That is to say, filing claims for revocation of existing yet unclearly defined patents at the central European patent office relieves firms from the fear of facing infringement measures on the whole internal market, especially if the timing of these falls apart from the date of revocation (also known as bifurcation). Despite these sporadic legal uncertainties, I think that, given its reflected action so far on patent implementation, the EU is quite prepared to prevent the emergence of “patent trolls” on European markets, hereby also benefiting from the insights derived from the American experience.

References:

The IPKAT Tuesday, 12 March 2013 Bifurcation of European patent litigation: a practitioners’ perspective http://ipkitten.blogspot.be/2013/03/bifurcation-of-european-patent.html, (fetched on November 9th, 2015)

Janssens de Bisthoven, N. (2013) – Patent Trolls and Abusive Patent Litigation in Europe: What the Unitary Patent Package Can Learn From the American Experience?, Stanford-Vienna TTLF Working Paper No. 19

Arnold & Siedsma – Patent letter: Europe becoming battlefield for patent trolls, http://www.arnold-siedsma.com/en/news-and-publications/news-and-articles-/patent-letter-europe-becoming-battlefield-for-patent-trolls , (fetched on November 9th, 2015)

https://en.wikipedia.org/wiki/Robert_Kearns#Legal_case, fetched on November 9th, 2015)

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Achille Klein
Patent trolls are a real threat for innovation and it discourages entrepreneuship in all around the world. In fact, their business is nothing other than the blackmail. These companies acquire a range of patents but they don't use them; they just try to extort money from productive companies by threatening them to go to the court for producing product or…
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Patent trolls are a real threat for innovation and it discourages entrepreneuship in all around the world. In fact, their business is nothing other than the blackmail. These companies acquire a range of patents but they don’t use them; they just try to extort money from productive companies by threatening them to go to the court for producing product or service they don’t have the permission for. “They don’t actually produce anything themselves » as the President Obama said.

What about the new establishment of the system of unitary patent and unified patent court, I think it’s a great idea but it must be more regulated.

First, if at least 13 Member States of the UE have signed it, it must have a good reason. Indeed, the unified patent court will have a cross-border effect. So, it will first decrease the costs of patent protection; it will also increase European competitiveness and finally, it will support the long-term growth of innovative industries in Europe and abroad.

Secondly, it’s obvious that a disadvantage of this new system is that it will attract more patent trolls in Europe as explained in the article.

Third, the difference with the United States is that the different judges in case of patent infringement in Europe are all professionals unlike U.S. judges who are just a jury. Consequentially, the probability of uncertainties caused by these juries in U.S. is very lower in Europe.

I talked before about a regulation for these litigation shops that are anyway legal companies. We could imagine to limit the number of patents they can buy to force them to sell these patents faster than before or even more order them to sell patents in a reduced period of time. These two solutions could decrease the number of patent trolls and encourage innovation.

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Sebastian Ksiezopolski
The presented problem of ‘patent trolls’ activity around the world is interesting and complex one. Mentioned ‘trolls’ use the created patent law system against its original idea, but according to the written rules they don’t do anything wrong. That is because everyone has the right to apply for patent, sell it to other entity and start a lawsuit when patent…
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The presented problem of ‘patent trolls’ activity around the world is interesting and complex one. Mentioned ‘trolls’ use the created patent law system against its original idea, but according to the written rules they don’t do anything wrong. That is because everyone has the right to apply for patent, sell it to other entity and start a lawsuit when patent was infringed.

Therefore, patent system started to work against own aim, which is creating an incentive to innovate. ‘Patent trolls’ operations are a reason of growing costs for innovative companies, such as cost of employing lawyers and experts in patent law to avoid infringement, salaries of analysts who determine how costly an infringement can be and what is the possibility of losing the trial and financial loss in case of losing the trial.

In such situation, patents have double impact – positive and negative, so sum of these impacts should be taken to determine how useful the patent system is for the economy. Maybe if we take into the consideration growing negative impact then we can look differently on the subject of the most efficient way to create incentives for innovation.

European officials should look closely on the situation in the US in order to avoid the same situation. Large European patent system may attract companies to get involved in the same damaging activities as ‘paten trolls’ in the US, but we should remember that law in Europe is stronger than in the US. In Europe, the process of obtaining a patent takes longer, judges have expert knowledge unlike juries in the United States and loser in the trail faces more severe financial consequences.

I believe that European authorities should apply changes suggested in open letter published on Google’s blog and signed also by 16 other large companies. If Europe will continue to efficiently control patenting, problem of ‘patent trolls’ shouldn’t be as severe for the EU as it is for the US.

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Pierre-Ami Maudoux
As it is shown above with the American example, the money spent on patent litigation can reach ridiculous levels and have a real negative impact on business operations in legal environments where patent trolling is made easy. It is therefore legitimate to be weary of new European patent legislation, such as the Unified Patent Package (UPP), as this new bill…
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As it is shown above with the American example, the money spent on patent litigation can reach ridiculous levels and have a real negative impact on business operations in legal environments where patent trolling is made easy. It is therefore legitimate to be weary of new European patent legislation, such as the Unified Patent Package (UPP), as this new bill could make Europe a better place for patent trolls, Non-Practicing Entities or other controversial organisations.

We are not convinced, however, that the UPP would increase the risk of ‘patent trolling’ for European businesses. By looking at the differences in legal systems and procedures between the United States and Europe, one can regard Europe as more protected against a wave of far-fetched patent litigations by NPE and similar organisations.

The article above already mentioned the lower fines imposed for patent infringement and the systematic ruling of professional judges in such cases in Europe. We also would like to point out the importance of the English Rule, widely used in Europe, which “requires the losing party to pay the winner’s reasonable attorney fees”. The American Rule, however, requires each party to pay its lawyer independently of the legal outcome of the case, which has been found to more often result in out-of-court settlements than its European equivalent.

We thus have in Europe the kind of legal system (1) that makes out-of-court settlements of patent infringement less likely than in the United States; (2) in which the uncertainty of the outcome of patent infringement cases is limited by professional judges and (3) which financially rewards ‘patent trolling’ far less than in America. Indeed, such an environment is very different to its American counterpart in such a way that abusive patent litigation is (much) harder to conduct on the Old Continent.

After all, the phenomenon of abusive civil litigation in general is much less common in Europe than in the United States, why should this be a different story when taking patent trolling – its intellectual property equivalent – in consideration?

Source : Eisenberg, T., & Miller, G. P. (2012). English Versus the American Rule on Attorney Fees: An Empirical Study of Public Company Contracts, The Cornell Law Review, Vol. 98, p.327.

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Debuisson Nicolas
After some reading, I think the new patent system offers more pros than cons. Of course, this new system will favor "patent troll" but I think it's a necessary evil. In my opinion, I think that the "patent troll" will always be more numerous in the United States than in Europe. The European judicial system is different from the American…
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After some reading, I think the new patent system offers more pros than cons. Of course, this new system will favor “patent troll” but I think it’s a necessary evil. In my opinion, I think that the “patent troll” will always be more numerous in the United States than in Europe. The European judicial system is different from the American system. A professional judge often more perspective and better analysis business that jury. This is important in these cases to have professional judges who may judge the case.

First, the new system simplifies administrative procedures. Before that system, the patenting of all European countries was long and costly. We had to file a patent in each country. This resulted in huge costs and difficulties. For example, text translation difficulties could arise between countries and complicate the patenting. Some small businesses may have difficulties paying these costs. With the unique patent, it will be easier for small businesses to access the European market.

Secondly, a patent for the whole of Europe is faster now than before with this unique patent. Companies can therefore quickly put on the European market their innovations. This is an incentive for companies to innovate and that is a good thing for the European market.
Thirdly, with this unique patent, conventional companies (= companies that do not practice “patent troll”) are easier to attack companies that violate their patents. So companies can better protect their patents in the European market. Here again, companies have an incentive to innovate.

In conclusion, I think this system is generally good for business and for the European market. Of course, the risk of abuse of “patent troll” is present but I think we have to trust the European system of law.

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Luyanqi Zou
A patent troll is in the field of intellectual property, specifically in that of licensing, the name given to a company or an individual that uses licensing and patent litigation as the main economic activity, taking advantage of loopholes in the law of intellectual property. This type of person, legal or natural, is more commonly referred to as Non Practicing…
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A patent troll is in the field of intellectual property, specifically in that of licensing, the name given to a company or an individual that uses licensing and patent litigation as the main economic activity, taking advantage of loopholes in the law of intellectual property. This type of person, legal or natural, is more commonly referred to as Non Practicing Entity (NPE) because their main feature is to produce no goods or services.
In an article in New York Times, the author explained that the Obama administration has taken administrative measures to control direction allows to fight against patent troll. Within the meaning of legislation, America Invents Act law adapted in 2011 made it illegal to file a single lawsuit demanding set of defendants had violated a patent in the same way.
According to many observers, the actions of these entities can be considered as “blackmail” judiciary. In the EU, there is also a risk of increased patent troll in the future. But in the context of the former European patent regulation, it lacks the cross-border effect as court injunctions in cases of patent infringement, in principle, only be effective for a single country.
Obviously, there is an impact between the regulation of the Union and national law, for example, the German patent law already provides what is known as “bifurcation”. But the potential risk of patent troll is already on the key market for the EU. To hollow out this risk, the Commission Regulation (EU) No 1257/2012 of the European Parliament and of the Council of 17 December 2012 provides for the implementation of enhanced cooperation in the area of the creation of unitary protection conferred by a patent. It will be indeed possible to obtain a valid legal order in a big market for at least 13 Member States, including the three largest countries: Germany, France and the United Kingdom.
This is the reason on which sixteen US and European companies such as Adidas, Deutsche Telekom, Apple, Google and Microsoft have jointly signed an open letter in September 2013. This open letter critical aspect of the judicial system adopted and suggests some modifications rules yet to be adopted proceedings before the unified patent jurisdiction future.

Sources:
http://googlepolicyeurope.blogspot.be/2013/09/troll-proofing-europes-patent-system.html
http://en.wikipedia.org/wiki/Patent_troll
http://www.nytimes.com/2013/06/05/business/president-moves-to-curb-patent-suits.html?_r=0
http://ipkitten.blogspot.be/2013/03/bifurcation-of-european-patent.html

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Adwate Kumar
As Paul mentioned in his lectures, the patent process is very different in US and Europe. In US, the priority is on fast delivery of patents, hence they don't take much time to go through the patents. In fact the average wait time for getting a patent is 24.6 months with a fast track option to get it in 12…
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As Paul mentioned in his lectures, the patent process is very different in US and Europe. In US, the priority is on fast delivery of patents, hence they don’t take much time to go through the patents. In fact the average wait time for getting a patent is 24.6 months with a fast track option to get it in 12 months. This system relies on courts to sort out issues regarding patent validity and infringement .Additionally patent cases are also tried by a jury comprising of normal citizens which are not well versed in the intricacies of patent laws. In such a system, it is easier for trolls to get a patent and they have a better chance of success if their target does not agree on an out-of-court settlement.

However, in Europe, the process is different. Here, the emphasis is on making sure that the patent is sound. Hence the process takes longer, around 43.7 months. This makes it harder for trolls to obtain a patent. Additionally, the patent trials will be judged by a competent judge,who will have be able to make a nuanced decision in accordance to patent laws. Also, there are provisions in European law that forces the looser to pay the litigation fees for the winner, which are absent in US. I believe that in light of these factors, patent trolls will find Europe a tougher nut to crack than US.

http://www.fastcompany.com/1802737/patents-numbers-average-wait-time-down-trolls-cost-us-80-billion-year
http://www.uspto.gov/main/faq/
http://en.wikipedia.org/wiki/Grant_procedure_before_the_European_Patent_Office
http://www.ambercite.com/index.php/amberblog/entry/how-many-granted-patents-contain-invalid-claims

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Carlos del Castillo Garzón
I am in accordance with the open letter was written in 2006 but I cannot be completely opposed to the behavior of Patent trolls. On the one hand, these entitles realize two important contributions: enforcing the law and providing small firms which are going bankrupt some financial help selling their patent licenses. PAE show to the market that patents exist…
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I am in accordance with the open letter was written in 2006 but I cannot be completely opposed to the behavior of Patent trolls. On the one hand, these entitles realize two important contributions: enforcing the law and providing small firms which are going bankrupt some financial help selling their patent licenses. PAE show to the market that patents exist and you need some rights or an agreement to use them. Although these types of enterprises have not developed the innovations of which they own but the other companies that benefit from it illegally should pay for the knowledge used free. On the other hand, the aim that Patent trolls have is earning money prosecuting firms that only want to investigate an idea. Indeed the trial is paid just by undertaking complained because the accuser is made up of a lawyer’s office specializing in IP. This particular behavior obstructs the natural creation of innovations and show that the patent system may be a double-edged sword.

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Rui liu
It is a good idea for court to establish the unified patent packages. From my perspective,the unified patent package will not reinforce the risk of “patent troll” as serious as in U.S. when landing in Europe.On the one hand,as it said above,”In Europe ,before the the created of unified patent package,there were serval different patent system,the companies ,which were sued infringe…
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It is a good idea for court to establish the unified patent packages.

From my perspective,the unified patent package will not reinforce the risk of “patent troll” as serious as in U.S. when landing in Europe.On the one hand,as it said above,”In Europe ,before the the created of unified patent package,there were serval different patent system,the companies ,which were sued infringe ,would like to pay for NPEs in oder to avoid being sued because this kind of case always costs lot compared with the tort fee the NPEs requested.Besides ,it always spend a long time to hear this kind of case and will even damage the image of the company. However, after the created of unified patent package, only professional judges rule on patent cases,thus limiting somewhat the uncertainties caused by juries”.In U.K.the general rule is that the losing party shall pay a big part of the litigation costs to the winning party .The party who try to initiate a request and then suspend the processing should pay the other party lots of cost.These rules may be blocked many patent litigations which lack of evidence and rival patent litigation.In this way ,the number of NPEs will decrease .On the other hand,because of deferent culture,the situation in Europe cannot the same as in U.S..

Admittedly, EU also had numerous cases of patent antitrust and unfair competition litigation involving “patent troll” behavior ,such as Nokia vs. Germany ‘patent troll “company IPCom,Google vs.Nokia,Microsoft vs.Masaid (a patent troll) in Canada and etc..Take the case of IPCom for instance,IPCom have suing Apple for infringe one of its mobile phone technology patents,claiming 1.57 billion euros.However,the German court dismissed the lawsuit and ruled that Apple did nit infringe on two patents which IPCom had said.From this case,we can find the fairness of legislation ,especially to the NPEs.It also prevent the lawsuits from the NPEs to some extent.

Finally ,regarding to the open letter,I do agree with that some proposed legislation should change and also take some important part into account.

In conclusion,to say the unified patent package seriously reinforce the risk of “patent troll”landing in Europe is overstated.It maybe a good choice to take the characteristics and local culture into consideration.

Sources:
http://www.cnpat.com.cn/show/news/NewsInfo.aspx?Type=G&NewsId=4671
http://baike.baidu.com/view/6550008.htm?fr=aladdin
https://docs.google.com/file/d/0Bw8Krj_Q8UaEd3U1dUJ3SVp6LTQ/edit

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Brice vander Borght
To give my advice, I will divide my text in 3 parts. First of all I will give my advice about “patent trolls”. Then I will see the ethic side of the firm which use patents as a goodwill. To conclude I will take about the solution that can be made by the UE to avoid this problem of “patent…
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To give my advice, I will divide my text in 3 parts. First of all I will give my advice about “patent trolls”. Then I will see the ethic side of the firm which use patents as a goodwill. To conclude I will take about the solution that can be made by the UE to avoid this problem of “patent trolls”
Europe is coming bigger and different market such as the patents one has to be bigger too. With this extension came also some negative aspects. I think that “patent troll” is clearly one of its. It’s like a brake to innovation. I see a patent such as an opportunity to develop a new product without the problem of the competition. Developing a new market is difficult enough to put the problem of “patents trolls” firm. Patents protect innovation and encourage innovator, weakening its will decrease the innovation in Europe.
For me, there is a really ethic problem with a firm which only buy patents to sue big companies which may use it to innovate. This kind of company is only using the flaws in the systems. If the law is well made, such firm would not exist and innovation will be better.
For me, UE has to change the law to avoid this problem. Another solution is to only allow companies to sue other companies only if the company which has the patent use it to innovate and create a new product. This rule will avoid any problem of the “patent trolls” firms.

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Wenzheng Wang
Unified patent system can provide the simple and efficient patent system in Europe,but it also introduces risks associated with the possibility of obtaining a legal injunction valid on a large market.Because Europe excited different legislation before,and if patent trolls want to earn damages from litigation,they should face different courts in different countries.It means that they will engage into a lengthy…
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Unified patent system can provide the simple and efficient patent system in Europe,but it also introduces risks associated with the possibility of obtaining a legal injunction valid on a large market.Because Europe excited different legislation before,and if patent trolls want to earn damages from litigation,they should face different courts in different countries.It means that they will engage into a lengthy and costly procedure,and the cost for litigation might exceed the expected damages from the defendant company.However,the system of unitary patent and unified patent court will help them to solve this problem.Now,patent trolls just should to win a lawsuit in this court,and the defendant company will face a legal injunction valid on almost whole Europe(at least 13 member states).It absolutely is a huge loss for any company,and they may be under pressure to settle out of court.It means that patent trolls can reach their targets easily in the unitary patent and unified patent system.That might be a great attraction to patent trolls.

However,I think it is wrong to demonize that there will be a serious crisis of patent trolls appearing on the European market because of the experience of the United States.As we know,compared with the United States,Europe has distinct legal system.There is no jury system in Europe and the court tends to adopt reasonable evidence on trial.For example,In the UK,the court has specialist judges at trial and appeal level with technical backgrounds and a reputation for thorough and reasoned decisions;validity and infringement is normally head together.And the case also be handled quickly with a trial 12 to 18 months from start of an action in the UK.That will be much harder for patent trolls to win the lawsuit and get the money settlement.And the important thing is that the new unified patent system give the choice to patentees,they can choose where to sue.It is a good way to prevent patent trolls,because even though it is a “unified” system,the unified patent system is presently expected to have a dozen or more local and regional divisions.These will contain panels of judges drawn from different legal traditions.This measure will give the product company a great chance to win the lawsuit because they can choose the place where the law is more beneficial for him.On the other hand,it increases the risk to patent trolls.And the unified patent system adopt loser-pays rule.It means that if patent trolls lose the case,they will face the enormous loss.So they may be intimidated by these rules.

All in all,we should not demonize the crisis of patent trolls in the European market,but we also should not ignore this problem.Because the experience of patent trolls in the United States is a good example.And I think the risk which the companies said in the open letter should be take into account.Because this system does bring some risks to the European patent system.However, it is not so serious as the companies said in the open letter.

Resources:
Bifurcation of European patent litigation: a practitioners’ perspective
http://ipkitten.blogspot.be/2013/03/bifurcation-of-european-patent.html

Will US patent trolls soon be making their way to the UK?
http://www.theinquirer.net/inquirer/opinion/2288901/will-us-patent-trolls-soon-be-making-their-way-to-the-uk

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Ana Martínez Alcaraz
As we know, a patent as a way to protect a firm's creation is a source of incentives to innovate, but when this become a tool used to extort and blackmail innovator firms there is a problem that I think is necessary to solve. Although the unified patent can accelerate, facilitate and make cheaper the process, I totally agree with…
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As we know, a patent as a way to protect a firm’s creation is a source of incentives to innovate, but when this become a tool used to extort and blackmail innovator firms there is a problem that I think is necessary to solve.

Although the unified patent can accelerate, facilitate and make cheaper the process, I totally agree with the open letter. Especially in the technologic industry, it is not strange that a single new product is composed by numerous patentable features. Although only one of these components infringes a patent, the product can not to be produced. If the threat of a patent troll demanding the payment of the license for use this determinate element (or the litigation cost if the firm do not want to pay) is obvious that innovation is unmotivated. How the open letter says: “any significant increase in litigation costs would undoubtedly consume company resources which could be better spent on innovation and growth” and this harms the society in general.

I am deeply convinced that the unified patent would attract patent trolls to the UE. The reduction of the costs of getting a patent in the context of an unified patent would spur the innovation in the smaller firms but also would ease to the patent troll to get bad quality patent for demand royalties in the future. Furthermore, the fact that with only on procedure in one country you could get the patent in the whole territory where the law works, would give incentives to the patent trolls to act in the UE because they would be able to demand higher licenses because if there was a court injunction in case of patent infringement, the innovator firm could not produce its innovation in the whole territory.

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Dorian Keuller
Following this text, an unified patent system will be installed in Europe in order to create one single system and law for 13 members states, including biggest markets like Germany, the UK and France. It’s quite a difficult phenomenon because it leads to different positive and negative effects. First of all, it seems logical that such a system will be…
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Following this text, an unified patent system will be installed in Europe in order to create one single system and law for 13 members states, including biggest markets like Germany, the UK and France. It’s quite a difficult phenomenon because it leads to different positive and negative effects.

First of all, it seems logical that such a system will be created because it results from European Union thoughts to be one community, to become one system! In the first point of view we could say that it spurs innovation. Indeed, the main positive impacts brought with this unified patent is the reduction of transaction costs due to a simplification of administrative processes which allows companies to invest their time in research instead of losing time in “paperwork”.

However, biggest companies such as Google, Microsoft and Adidas are afraid about the possibility of emergence of “Patent trolls” in Europe with this unified patent. And the impact here of troll could be consequent. Indeed, a suit engaged by a patent troll for alleged infringement of patent could be disastrous. There are here two different aspects.

Firstly, because of the future “unified patent structure”, an injunction will be judge by two courts, one over the validity and the other over the eventual infringement of the patent. And this will take a long time meanwhile production processes and sales could be stopped into the whole Europe. That would be disastrous because it would be a considerable loss of profit and a slowing of innovation. Therefore, companies could be forced to settle out-of-court with these trolls.

Moreover, European law policy is quite different from the US law. In Europe, most of time, the suit costs are supported by the looser. Thus, it is risky for innovators to go to court if they are not sure to win. But in the view of “patent trolls” it also is a brake for them because they only have a low win rate (following results) and a loose could generate big liabilities.

Finally, what could be perfect solutions to avoid this kind of misbehavior? Actually, I do think that such a system can work if we well-define it. Strong and accurated laws are needed for patent granting and patent reviews. Indeed, a weak system would allow a lot of “patent trolls” to exist. In my opinion, another system could be imagined. In this one system, one would create associations which would help new companies and start-ups to struggle against these trolls. These associations would help them in the buying patent process. Maybe could we think of a policy of “coach”. What I mean by this is that they could give investments in these new companies to help them to buy the patent they would not have protected. By doing this, they would receive rewards in terms of money, of licenses.

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Charlotte Moreau
In a world where even tiny start-ups tend to go worldwide, it is certainly important to unify the patent system. Even though law differs from one continent to another and further from one country to another, patent can be used by a multinational firm in different countries. Mainly, patent trolls will not have great impact on our economy. Firstly, they…
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In a world where even tiny start-ups tend to go worldwide, it is certainly important to unify the patent system. Even though law differs from one continent to another and further from one country to another, patent can be used by a multinational firm in different countries.

Mainly, patent trolls will not have great impact on our economy. Firstly, they slow-down innovation and reduce venture capital investment. It is also cutting down the money invested in research and development. Moreover, start-ups suffer a lot from it. After the important amount of money they must use to legally defend themselves from patent trolls, they often have to exit business or to change strategy.

On the contrary, patent trolls enable to have a balance between independent investors and big firms. Besides, their business consisting of acquiring, pricing and selling patents is totally legal.

But according to me, it is good thing to restrict the patent trolls so that it will limit them in the U.S. and it will be more difficult for them to conquer Europe. It will make a friendlier market towards young technological and software start-ups.

The unitary patent system serves the attractiveness of Europe for investors. It aims to open the European patent market to the U.S. and Asian markets but it also aims to have a common system within Europe which simplifies a lot the patent regime. Concerning patent trolls, the unified patent system may foster companies towards litigation with non-practicing entities (NPE) because European-wide sales will be much more available in patent-rich sectors.

Regarding the open letter signed by 16 influent companies, I fully agree with it because these companies advice Europe to improve the unified patent system in order to avoid the problems they have faced in the United States. That will also encourage companies to keep investing in R&D. For Europe, it is the right time to perfect this rules because it is only expected to be operational in 2016.

In conclusion, it is great to underline the fact that public institutions and private companies are working together to improve the patent system for a win-win situation. The final goal is to lower litigation and patent trolls. This patent field is in infinite working in progress.

Sources:
http://fr.wikipedia.org/wiki/Patent_troll
http://arstechnica.com/tech-policy/2014/06/new-study-suggests-patent-trolls-really-are-killing-startups/
https://hbr.org/2014/07/the-evidence-is-in-patent-trolls-do-hurt-innovation/
http://www.law.stanford.edu/sites/default/files/child-page/188509/doc/slspublic/janssens_wp19.pdf
http://ipcopy.wordpress.com/unitary-patent-package/
https://www.ashurst.com/publication-item.aspx?id_Content=9008
http://googlepolicyeurope.blogspot.be/2013/09/troll-proofing-europes-patent-system.html

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Raidron Charles
First of all, I would like to express my opinion about these « patent trolls ». As stated in the article, they only enforce a legal right they own. But does it mean that it is ethical, and it does not harm the economy? “Smaller companies are getting hit just as hard, and 40% of technology startups targeted…
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First of all, I would like to express my opinion about these « patent trolls ». As stated in the article, they only enforce a legal right they own. But does it mean that it is ethical, and it does not harm the economy? “Smaller companies are getting hit just as hard, and 40% of technology startups targeted by patent trolls reported a significant impact on their business operations due the suit or threat thereof.” It is thus an obstacle to innovation, and I can’t see any positive effect of that kind of practices.

But I don’t really think they could enter the European Market that easily. The fact that patent issues are not settled by a jury, as it can be in the United States, but by a bunch of professional judges in all cases, is maybe a huge barrier to that kind of practices, because a smaller amount of abusive lawsuit will probably be engaged. Also, the damages awarded at the end of a lawsuit are lower in Europe, while costs involved in the process of the lawsuit are bigger.

Moreover, the fact that the bifurcation features of Germany are already in place and haven’t attract a significative amount of trolls, despite being a way for them to do their business, comfort me in my opinion that this unified patent package will not necessarily be a way to facilitate the entry of trolls, and that it will not become an as big issue as it is in the United States.

To conclude, I can see the points of the companies that wrote the open letter, but for me they should not fear that much the possible entry of “Trolls” in the European market. And if they do enter, maybe the fact that some new ideas will be blocked by these trolls and their patents, will drive firms to search for new ways of doing, and it will lead to a new wave of innovators. But I doubt it since apparently it never happened in others market where there was trolling about patents.

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Beili Zhang
Patent trolls have been on the news and have been subject to a lot of discussion these last few months. Today I’m going to propose my point of view on the subject. First of all, I don’t agree with the defense on patent trolls saying that “one does nothing but enforce a legal right that one owns”. Indeed, we all know…
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Patent trolls have been on the news and have been subject to a lot of discussion these last few months. Today I’m going to propose my point of view on the subject.
First of all, I don’t agree with the defense on patent trolls saying that “one does nothing but enforce a legal right that one owns”. Indeed, we all know that the law is not omniscient and this give the perfect occasion for the opportunistic to try to make money out of it. In my opinion, the patent trolls are in the same level than tax avoidance, speculation or the Stella awards (1). While not being illegal per se, one does nothing but try to make a lot of money by taking advantage of the legal system. These practices create nothing, don’t contribute to anything but to serve the patent trolls own interests.

Moreover, patents are also seen as an incentive for innovation yet patent trolling have an adverse effect. Indeed, like Obama said:” It’s clear that the abuse of the patent system is stifling innovation and putting a drag on our economy.” Some may argue that they also constitute as a negotiation tool for the companies in order to protect themselves against the competition (for example, in regards of the lawsuits that face Apple versus Samsung (2)), but in my opinion, patent trolling leads clearly to more abuse than just “protecting its own rights”. And let’s not forget about the company whose sole purpose is to acquire patent rights “but not for the purpose of developing new products: they make money by going after other companies with threats of legal action(3). Besides, Business Insider has made a listing of the Tech’s 8 most fearsome “Patent trolls”(4)

As for the unitary European patent. While I agree that offering an uniform pattern would be a good idea to stimulate innovation by making the patent cheaper and easier to apply in Europe (it could protect the small companies who won’t need to pay different patents for different countries at an expensive fee) it can also give the green light for the patent trolls to take advantage of the system. Indeed, as the letter said, the article 62 of the UPCA would lead as a consequence that “some of the divisions of the UPC will require a very low standard of evidence, making it very simple for any Patentee, including a patent troll, to obtain such preliminary measures, with the risk of such measures being granted in cases where they are not truly justified. “(5)

As a conclusion, I would say that even though I’m a supporter of the Unitary European Patent, some of its provisions should be corrected so that patent trolls wouldn’t have the opportunity to abuse the legal system. Europe should learn from the USA, who are looking to strengthen their law in order to fight patent trolls.

(1) http://www.stellaawards.com/
(2) http://bgr.com/2014/04/04/2014-apple-samsung-lawsuit/
(3) http://www.datacenterjournal.com/it/apple-vs-samsung-patent-trolls-and-other-troubles/
(4) http://www.businessinsider.com/biggest-patent-holding-companies-2012-11?op=1
(5) http://www.lexology.com/library/detail.aspx?g=b3e33fad-bdc1-4224-be85-4f04cd5685f5

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Thomas Boreux
Legislation about patents have always been source of several debates and his effectiveness has always been called into question. Patents trolls are « companies who enforce patent rights against accused infringers in an attempt to collect licensing fees, but does not manufacture products or supply services based upon the patents in question, thus engaging in economic rent-seeking ». As soon…
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Legislation about patents have always been source of several debates and his effectiveness has always been called into question. Patents trolls are « companies who enforce patent rights against accused infringers in an attempt to collect licensing fees, but does not manufacture products or supply services based upon the patents in question, thus engaging in economic rent-seeking ». As soon as these companies get their innovation, their activities (no matter how dishonest their are) concerning a lawsuit about patents are legal.

Let me develop my opinion about these patent trolls in the context of the innovation. Like everybody knows, processes of innovation are sources of economic development and increase in consumer’s welfare, and are thus benefic. The real question is « Is the patent system benefic for innovation? ». For example we already spoke about patent races previous weeks, let’s see today what are patent trolls’ effects on innovation processes. In the one hand, we can see the existence of patent trolls as an extreme incentive to innovation in the sense that it could be seen as an extreme patent race. But disadvantages are in my opinion much more visible. Since lawsuits about patent infringements are really expensive, some companies could be reluctant to innovate because of the risk of legal consequences, synonym of heavy fine. Moreover, all money spent on lawsuits and fine is a total waste of consumers and industry’s welfare in the sens that every dollar spent could be invested in more useful domains, like R&D, leading to innovations.

Let’s speak now about patent’s troll’s arriving in Europe. In the letter written to the European authorities, several companies discuss about two aspects of the problem: patent’s validity and patent’s violation. Two different and independent courts are responsible for those two aspects of patent’s legislation. In my opinion, the first aspect is the key to the problem. If Europe develop and enforce law about patent acquirement, patent trolls would be much more hindered. For example, we could imagine procedure of justification of the innovation: a firm which ask for a patent must give proofs that these innovation will be used in the context of a new project’s development.

In my opinion, I agree with the system of patent trolls (despite the fact it is totally dishonest) because there is no legal basis counteract them. People would always try to subvert the law, but it is legal authorities’ role to improve it in order to avoid this kind of situation.

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Andrea Carolina Rosero
Before reacting to the potential impact of the regulation on patent protection and the companies’ open letter, we need to clarify the arguably negative impact of Patent Trolls on product innovation. Both the proponents and opponents of the actions NPEs, aka Patent trolls, make convincing arguments. On the side of the proponents, Patent Trolls only use their legal right to…
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Before reacting to the potential impact of the regulation on patent protection and the companies’ open letter, we need to clarify the arguably negative impact of Patent Trolls on product innovation. Both the proponents and opponents of the actions NPEs, aka Patent trolls, make convincing arguments. On the side of the proponents, Patent Trolls only use their legal right to protect patents which they own. They may even be provide a beneficial function to some innovators, in that they protect them from corporations which may be willing to infringe on the patents and not pay licensing fees. On the side of the opponents, the Trolls create uncertainty and inefficiency, and slow the business operations of manufacturing and distribution companies. Since only 9% of the infringement cases brought by the NPEs win in court, the intentions of these companies would seem to be more opportunistic, than motivated by protecting innovators. In most cases, companies prioritize the efficiency of their business operations over cash lost in settlements, and pay the Trolls. The payments create a motivation for the Trolls continued misbehavior. In the US, although Google is a major contributor to President’s Obama, the influence of Google’s campaign contributions are unlikely the only motivation for President Obama’s desire to crack down on NPEs. The waste and inefficiency which Patent Trolls create for companies and markets outweighs their benefits in protecting patent rights. Therefore, to boost market efficiency and product innovation, the EU should integrate effective measures to minimize the wastage created by the Trolls into patent protection regulations.

In their open letter, the companies make a clear argument that the unitary patent protection regulation creates incentives for Patent Trolls to become more active in Europe. The regulation magnifies the potential problems companies could face from patent infringement cases. In fact, through infringement cases, NPEs could hold up major innovations from reaching all of the member states, thus creating significant problems for corporations. As a result, corporations will be more willing to pay large settlements early, rather than to suffer the time and effort lost by engaging even in cases they are even likely to win.

The companies offer guidance to reduce the incentive to Patent Trolls, primarily by clarifying legal procedures. First, the companies suggest clarification regarding the two aspects of a potential litigation: whether a patent is valid, and whether it is infringed. By bifurcating these elements, the legal system creates a weakness which could be exploited by NPEs. I can only support greater clarity in a law, which leads to more efficiency for innovation and business. Second, the companies also suggest more clarity regarding injunctions. The corporations would like to protect themselves from Trolls who seek to stall large and complex processes by attacking a minor patent infringement. Again, I agree that for the sake of efficiency, the patent protection regulation should be clarified to prevent Trolls from abusing possibly dubious patents to create legal slow-downs. Certainly, patents should be protected, and companies should not be let off the hook in paying licensing fees. However, the issues surrounding injunctions are complex and often unclear (especially in the case of successive innovators using otherwise economically worthless first innovations). Therefore, efforts to streamline legal issues by incorporating the companies’ suggestions into the patent protection regulation, so as to support efficiency in delivering new innovations to customers, are recommended.

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Charlotte Irgens
Without being an expert in patent legislation, I think that creating a unitary patent system for Europe seems like a good idea. A unified system for patents would most probably prove more efficient for innovators as it would not be necessary to file for a new patent protection under each different system in all European countries. The cost of obtaining…
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Without being an expert in patent legislation, I think that creating a unitary patent system for Europe seems like a good idea. A unified system for patents would most probably prove more efficient for innovators as it would not be necessary to file for a new patent protection under each different system in all European countries. The cost of obtaining patent protection would significantly decrease. I believe that introducing such a unitary patent system would increase the overall competitiveness of the industries of Europe, and especially be valuable for the long-term growth of innovative industries both when operating in the different countries of Europe and when expanding outside the region.

However, after having read the open letter to the EU signed by several big companies such as Google, Apple, Deutsche Telekom and Adidas, I do understand why they want to add some changes to the proposed agreement on a unified patent court and why they are afraid of patent trolls ravaging the European markets.

Patent trolls are entities that most often acquire patents with the purpose of filing patent infringement claims and like this they contribute to hindering innovation. Suffocating innovation is clearly not good for society overall, and from my point of view these kind of innovation-hindering activities should be fought against. The danger with the new legislation that the unified patent package involves is that it seems to present some risk for abuse by these so-called patent trolls. Some specific risks are highlighted in the open letter, and I agree with the signatories of this letter that these risks should be looked further into and that it may be necessary to change the proposed unified patent package in order to mitigate these risks. Europe would suffer if innovation-stifling measures became easier to impose as companies would move innovation activities to more innovation-friendly environments. I will now take a closer look at the risks that are identified in the open letter.

Firstly, the issue of whether a patent is valid and whether it has been infringed is common in patent cases. The proposed agreement on a unified patent court allows for decisions to be made by different courts in the same case, but provides little guidance on how this should be done. Therefore the signatories of the open letter think this could be a pitfall of this agreement as this could allow plaintiffs to obtain a quick infringement ruling from one court before it has been determined whether the patent is actually valid. Like this, plaintiffs could be able to extract substantial royalties from European companies based on low-quality- and even invalid patents. The signatories of the open letter further fear that “the proposed new patent system could undermine, rather than promote, innovation in Europe, as producing companies could develop strategies to avoid European jurisdictions in fear of an unfair litigation system being too advantageous for patent proprietors.” This could lead companies to divest in Europe and rather find other locations for their innovation activities. Also, the increased litigation costs would mean less of the company’s resources spent on innovation and growth. Injunctions let patent holders block unlicensed products containing their technology from the market. However, this could enable litigants to make unreasonable royalty demands for a minor patent on a complex product. The signatories argue that the new agreement must contain specific guidelines on when to grant injunctions, because if this is not clear there will be strong incentives for abusive behaviour by e.g. patent trolls. This could be particularly grave with this new European agreement as the injunction power will extend beyond single countries and include most of Europe. The risk of these kinds of abusive behaviour that are brought up in the open letter is not only theoretical. In the United States, litigation brought by patent trolls cost U.S. businesses 29 billion US dollars in 2011 and half a trillion dollars in lost wealth from 1990 to 2010.

In order to sum up my point of view on this case, I would say that the idea of creating a unified patent system in Europe seems to be a good idea and can create several benefits, as already mentioned above. Still, as highlighted in the open letter, there are some important points that need to be looked further into, and the proposed legislation might need some changes. I think it would be wise of the people who are working on this new unified patent package to listen to the proposed changes to the agreement that the signatories of the open letter has, as risking to implement a legislation that will enable patent trolls to ravage the European markets would be highly unfortunate for fostering innovation in Europe in the future.

Link to the open letter: https://docs.google.com/file/d/0Bw8Krj_Q8UaEd3U1dUJ3SVp6LTQ/edit

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Camille Willot
It is simple to recognize the multiple advantages that a unitary patent in Europe would have. After 30 years of negotiations, the European Commission came in 2013 with this unitary patent, which would be valid in 13 Member States (including Germany, the UK and France, the three largest countries in the EU). This patent will enable that a demand for…
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It is simple to recognize the multiple advantages that a unitary patent in Europe would have. After 30 years of negotiations, the European Commission came in 2013 with this unitary patent, which would be valid in 13 Member States (including Germany, the UK and France, the three largest countries in the EU). This patent will enable that a demand for a patent in one language will allow to benefit of the protection in all the contracting countries, whereas before 2013, one had to make a different demand for patent in each country which one wanted to be protected in. This procedure was costing a lot, in translation and administration mainly, and could go up to a 36 000€ cost for being valid in the 28 Member States, whereas patent costs were in average 1850€ in the US. (Toute l’Europe.eu, 2014).

However, one can as the question whether this unitary patent will induce more patent trolls in Europe than before or not.

Certainly, there are arguments which support this idea. First, as companies are arguing in the open letter, the pressure power of these parent trolls will be larger, because the prohibition of commercialization will be in application in all contracting countries. The incentive to just accept a litigation and pay the patent troll will be then higher, because these patent trolls will be able to block a very wide opportunity of commercialization. Second, because of the bifurcation process explained in the article from LaLibre, the commercialization of a product could be blocked even before being sure of the validity of the patent.

Nevertheless, I think that the “patent troll effect” has real chances to grow less here in Europe than in the U.S. Firstly because rewards are smaller in Europe than in the US. Second, because in Europe only professional judges can rule patent cases, whereas in the US there is much more uncertainty around how will a court decision around patent will end up. Third, I do believe there is another mentality here in Europe than in the US around litigation. One think about all absurd cases were the complainant obtained justice, where his point was obviously not rational (cfr. The lawsuit in 1992 against McDonalds for serving too hot beverages lead to a 1,7 million dollars compensation, Droit-Inc, 2014). I have the serious impression that the American juridical system enables more absurd cases, where the situation is clearly unfair, and thus will be more flexible with patent trolls’ claims.

In conclusion, I don’t think that having a unique patent will change the true problem. The real question one must ask ourselves is how to avoid these patent trolls. Even though I believe the unique patent is a positive idea, I do agree with what is said in the open letter: one must rethink the patent procedure, the way of doing things, and strength the review process after patents have been granted. To me, one must change the way of granting patent and the way to use it afterwards. For instance, one must be sure about the validity of the patent before blocking everything, and not the contrary. Moreover, as they are saying in the letter, consumer’s harms should be thought about before blocking everything. Furthermore, I agree with what is written in the article in the Financial Time: one must increase transparency regarding these NPEs and maybe reform the law of evidence.

SOURCES:

Droit-Inc. (2014). Les 7 procès les plus absurdes. Online http://www.droit-inc.fr/article11673-Les-7-proces-les-plus-absurdes, consulted on the 25th of November 2014.

Google Europe Blog. (2013). Troll-proofing Europe’s patent system. Online http://googlepolicyeurope.blogspot.be/2013/09/troll-proofing-europes-patent-system.html, consulted on the 25th of November 2014.

LaLibre.be. (2013). Les “patent trolls” bientôt sur le marché européen? Online http://www.lalibre.be/economie/actualite/les-patent-trolls-bientot-sur-le-marche-europeen-5261ffa83570314ade9eb46e, consulted on the 25th of November 2014.

Toute L’Europe.eu. (2014). Le brevet unitaire européen. Online http://www.touteleurope.eu/les-politiques-europeennes/marche-interieur/synthese/le-brevet-unitaire-europeen.html, consulted on the 25th of November.

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Sebastian Singer
Patent trolls (or “‘Non-Practicing Entities’ (NPE) or ‘Patent Assertion Entities’ (PAE)”) are mostly a phenomenon of industrial countries and are meanwhile more than only a side effect of an organized patent system. They collect (broad) patents to enforce them against other companies or persons to gain license fees. In accordance to an increasing number of patent litigation due to patent…
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Patent trolls (or “‘Non-Practicing Entities’ (NPE) or ‘Patent Assertion Entities’ (PAE)”) are mostly a phenomenon of industrial countries and are meanwhile more than only a side effect of an organized patent system. They collect (broad) patents to enforce them against other companies or persons to gain license fees. In accordance to an increasing number of patent litigation due to patent trolls the USA took measures to restrict patents trolling e.g. in February 2014 Wisconsin passed a law to ban this kind of practices totally. Meanwhile overseas in Europe companies voice concerns about the agreement on a unified patent court which is planned by the European Member States. In an open letter the respective firms expect as a result of the agreement an increasing number of NPEs which cut the incentives for further innovations.
Are NPEs really a threat to Europe innovation’s incentive system and, if yes, are there remedies to establish a “healthy” equilibrium?
This is, among other things, I´d like to discuss in the following comment.

The groups which suffer severe from patent trolls may be little firms, single supplier and freelancers (e.g. independent programmer) once their financial setting is not that large to cope with long and expensive patent litigations. Especially the IT sector can be seen as a vulnerable market for such activities because final products often consist and rely on many single subpatents. But as we can see from the open letter, also a lot of multinational enterprises are concerned about an increasing number of patent trolls. Indeed, after the decision of authorities in the USA to restrict this behavior, a lot of European firms see themselves as a new target for patent trolling. E.g. the “Deutsche Telekom”, Europe’s biggest telecommunication enterprise with a head office in Bonn/Germany had to pay a three-figured million amount of money (in Euro) after a settlement with IPCom, a patent troll, due to approximately 20 court proceedings.

Indeed, patent trolls find already perfect preconditions in Europe. Firms criticize that there can be two parallel litigations, one which covers the validity examination of the respective patent and the other which deals with the infringement on the same patent. Therefore firms are exposed to the threat of a potential prohibition of sale on their product although the respective patent can declared invalid a few times later. The catch is, that this processes are hold by different courts which raises uncertainty and costs. This phenomenon is called bifurcation. The higher the expected costs, the higher the deterrence for companies to fight patent trolls rather than to pay license fees.
On top of this, especially in Germany, the courts are very fast, which also favors those actions.

To evaluate the impact on the incentive system of innovations, concerning the existence of patent trolls, there a two driving forces. On the one hand NPEs stimulate innovation for the operating company which transfers the patent to the troll, but on the other hand it stifles the incentive to innovate for the competitors. Which effect does outweigh the other? As we can see as well from the open letter, there is a variety of firms that operate across several markets and that companies signed the letter – so it may be the second effect which is higher. Additionally one have to keep in mind, that the troll’s business method focuses on legal litigation or the threat of litigation to obtain fees, beyond the intention to use the respective patent in an operative manner.

Furthermore there often exist mighty bankroller in the background of the NPEs which provide them with fresh money. This also leads to a wrong allocation of financial resources.

Finally, regarding all this aspects, what kind of remedies may exist to avoid or at least reduce patent trolling?
– Unlike the USA, Europe has “a loser pays cost regime” which ensure that only the party which loses a litigation has to cover all expenses
– There must be a raise of awareness on this issue, especially for small companies, to take protecting masseurs beforehand in shape of assurances (for patent litigation)
– Considered the fact, that every patent depicts a lawsuit license, the licensing process has to be provided with enough capacity to prevent in a preemptive way, markets and society of patents which are phrased in a “vague” manner

Sources:

http://googlepolicyeurope.blogspot.be/2013/09/troll-proofing-europes-patent-system.html
http://www.spiegel.de/wirtschaft/unternehmen/telekom-zahlt-hunderte-millionen-euro-an-patent-troll-ipcom-a-909323.html
http://graphics8.nytimes.com/packages/pdf/business/26trolls-letter.pdf
http://upstatebusinessjournal.com/another-bad-day-patent-trolls/
http://ec.europa.eu/internal_market/indprop/patent/ratification/index_en.htm

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Nicolas Bindels
As in every new law application, it seems there is some advantages but also some disadvantages. Indeed, again the environment is moving which create some opportunity for some parts which one can create, in their turn, some troubles to other parts. As explained into the article above, it seems that “patent trolls” becomes a bigger and bigger issue overtime in…
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As in every new law application, it seems there is some advantages but also some disadvantages. Indeed, again the environment is moving which create some opportunity for some parts which one can create, in their turn, some troubles to other parts.

As explained into the article above, it seems that “patent trolls” becomes a bigger and bigger issue overtime in a such big market as the USA, certainly due to the fact that, in a such market, a patent issue for a big company (as the one which signed the open letter) can be value a lot of money which leads small companies which cannot compete with these bigger to change their business model into “patent trolls”.

With the presentation of a decision to unified patent juridiction in EU, some of these big companies fear to face the same problem but in Europe now…

According to my opinion, “patent trolls” are an opportunistic seeking money move which in overall disadvantage the global society. And I think that if the EU unified its patent juridiction, it could favorise the rise of “patent trolls” in the EU because that new environment parameters will make it a business model much more profitable than before because of the new size of its market. But in other hand, in my opinion, unified the EU patent juridiction could also help a lot of small companies to enter into the big companies qualification instead of staying small PMEs because of the fall down of that big constraint to enter into other EU countries.

So in one hand, we could have the benefit for small companies to straightly have the ability to target EU market which can make them much more attractive in term of investment and so easier to develop themselves but in other hand we could see a rising of “patent trolls” as in the USA. As final opinion, I think we could also take into account the culture of the market. In USA, people are much more familiar with patent competition and patent opportunism contrary to the EU where it seems people are fearing much more to go into a justice war with big companies. Furthermore that In Europe, only professional judges rule on patent cases according to the article.

To express a clear answer to the question asked, as discussed above and speaking for the society in its overall, I think that the benefit to unify the EU patent juridiction are bigger than the disadvantage. Speaking for the big companies that signed the open letter, I think they will always be against what encourages entities to patent and that in the case of the EU, their fear are bigger than the real consequences that could happened.

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Chen Jia-Zhun
I do agree with the position defended by the companies that signed the letter. As said in the letters, “Patents encourage inventors to publicly disclose their inventions, sharing knowledge and spurring further progress while recouping their investment.” For me, the patent trolls are doing the contrary. In USA, it is a big issue. Companies used to spend a lot of…
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I do agree with the position defended by the companies that signed the letter. As said in the letters, “Patents encourage inventors to publicly disclose their inventions, sharing knowledge and spurring further progress while recouping their investment.” For me, the patent trolls are doing the contrary. In USA, it is a big issue. Companies used to spend a lot of money in their R&D but now, with those patent trolls, some of them spend more money on patent than in R&D. It has a huge economic impact and it is an issue to innovation.
I think that the unified patent system would promote innovation and competition between countries in Europe and according to an article of Le Monde, it is supposed to reduce the cost of filing patents.
However, patent trolls will maybe also take part of this new system like in the USA and it isn’t good for the EU.
But as you said in La Libre, I do agree that it is too soon to say that it will be bad and that it is overrated. Plus, in the EU, they don’t have the same culture as in the USA.
In conclusion, we do have to worry about the patent trolls in Europe but it doesn’t have to be a main issue, some laws against that could emerge.

http://www.lalibre.be/economie/actualite/les-patents-trolls-bientot-sur-le-marche-europen-le-risque-n-est-pas-negligeable-5261ffa63570c7e5f9ee5755
http://www.lemonde.fr/technologies/article/2013/09/26/des-entreprises-s-alarment-de-l-arrivee-de-patent-trolls-en-europe_3485720_651865.html

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Laurence Balis
I think patent trolls are a bad thing and have bad consequences and impacts for two main reasons. First, patents are made to promote innovation and growth. They are made to share the knowledge of inventors and this is exactly the opposite effect that happens with patent trolls. The second reason is that all the time people invest in litigations…
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I think patent trolls are a bad thing and have bad consequences and impacts for two main reasons. First, patents are made to promote innovation and growth. They are made to share the knowledge of inventors and this is exactly the opposite effect that happens with patent trolls. The second reason is that all the time people invest in litigations because of this patent trolls, they don’t use it for research and development.

Concerning the unified patent package I don’t think it will reinforce the risk of patent trolls landing in Europe for two main reasons. First, there are not a lot of patent trolls in Europe compared to the United States. And this shows that the proportion of people willing to act in this way is smaller than in the U.S.. Second, for now, court injunctions can only be effective for a single country. So, people are afraid that allowing these injunctions to a larger market will increase patent trolls. But it won’t be interesting to do that because if people want to enter in the European market, they should deal with every country or at least with the largest ones. If for example, they have a litigation with the U.K. or with Germany, it will be harmful for them and so it won’t be profitable to use patent trolls.

Regarding the open letter, I agree with the position defended by the companies that signed it because they don’t need to be disturbed by such a legal inconvenience. They need their money to invest in R&D and come up with new ideas and innovations and not to waste it in judicial issues. As mentioned in the article, Google lost a lot of money by dealing with legal fees. Moreover, in Europe, these fees are so expensive that the companies would benefit to directly negotiate a license and this makes no sense.

To conclude, I will just add that I think that a major problem comes from the Patent Office as discussed in a previous article. Especially in the U.S., patents are given very easily and maybe this is why there are so many patents trolls there compared to European countries.

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Brodheim Dimitri
Patent trolls are those who want to buy companies’ patents in order to own a patent pool and after that prosecute others companies which break the law by using patents already granted by these patent trolls.In other words, by keeping the innovation secret until it is used by another company, patent trolls fight against innovation and are in favor of…
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Patent trolls are those who want to buy companies’ patents in order to own a patent pool and after that prosecute others companies which break the law by using patents already granted by these patent trolls.In other words, by keeping the innovation secret until it is used by another company, patent trolls fight against innovation and are in favor of inaction.
The problem is; Patent trolls already have the innovation but don’t use it in order to provide litigation problems and because the justice process is long and costly and so companies avoid to go to court and prefer to pay the patent troll.
As far as I’m concerned, I partially agree that Patent Trolls are entirely harmful.

On the one hand, it seems evident that patent trolls implies that other company waste time and money. Indeed, as I said before, Patent Trolls already have the patent, they are just waiting for the moment when they could provide litigation problems and obtain money. By this, they supply no progress improvement and they also drain billions in the economy.
But on the other hand, it is a good opportunity for companies which cannot sustain their business and so, in order to provide a positive return of its R&D investment, decide to license their intellectual property.

Since 2014, the Unified Patent Court put in place the Unified Patent ¨Package (UPP) which has a lot of advantages but also disadvantages.
Indeed, on the one hand, UPP, by allowing companies to reduces their cost and simplified the administration, creates cooperation possibilities between its members and so spurs innovation. But on the other hand, the UPP will let to Patent Trolls a wild open space to take action and so it will enhance the Patent Trolls’ motivation.

In order to decrease Patent Trolls’ number, Microsoft, Adidas, Google wrote an open letter. Indeed, all of these big companies want to avoid a situation in Europe like the situation in the US and want to spur innovation and so, in order to realize this, want to decrease the number of obstacles against innovation. But we have to keep in mind that sometimes, Patent Trolling is a great opportunity for small companies which haven’t a big financial situation and want to obtain the fruit of their research even if they don’t use it.

In conclusion, I partially agree with all these big companies and I think that the unified patent court should find another way to manage Patent Trolls.

Easier said than done.

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Aditya Chandrasekar
The unified patent system in Europe will definitely have an impact on the innovators and manufacturers, in the context of the so called “abuse” by patent trolls. There are multiple perspectives from which one can analyse the possible impact. Firstly, and the most important aspect of the unified patent system, is the fact that it is one single system and law…
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The unified patent system in Europe will definitely have an impact on the innovators and manufacturers, in the context of the so called “abuse” by patent trolls. There are multiple perspectives from which one can analyse the possible impact.

Firstly, and the most important aspect of the unified patent system, is the fact that it is one single system and law for 13 member states, including some of the largest markets such as Germany, France and the UK. Therefore, if there is a suit filed by a patent troll for alleged infringement of patents, and if the court decides to grant an injunction barring the product from being manufactured and sold in the member states till the completion of legal proceedings, it would be a significant blow to the profits of the innovators. They would lose their ground in some of the biggest European markets for an uncertain period of time. Thus, they would be forced to settle out-of-court with the patent trolls. This kind of scenario could become quite common, thus attracting patent trolls to set up shop in Europe.

Secondly, we need to look at the litigation costs. The primary reason as to why there have been multiple settlements by innovators, even though the patent trolls may claim infringement of their low quality and often invalid patents, is the high amount of litigation costs. It is estimated that even if the innovator is successful in defending the lawsuit, he would have to dish out around $2 million on average towards litigation costs. Thus, settlement of a few hundred thousand dollars may be a better option. However, in the context of Europe, things may be different. In most cases in the US, both parties pay their own litigation fees. However, in Europe, the court may order the loser to pay all the litigation fees. In this case, the patent troll (with successful suits at less than 9% of the total suits filed), may have to face a significant financial burden, and this may also prevent the innovator, especially the ones confident of winning the suit, from settling. This is something that would not be attractive to the patent trolls.

Thus, the two aspects detailed above may have opposite effects on patent trolls in Europe. Though effective regulation against patent trolls is definitely welcome, one cannot directly conclude that the unified patent system, if enacted as is, would be a significant blow to the innovators’ prospects in Europe.

Sources:
1. Will ‘Patent trolls’ soon appear on the European market? – Alain Strowel
2. en.wikipedia.org/wiki/Patent_troll
3. Troll-proofing Europe’s patent system – Catherine Lacavera, Director of Patent Litigation
4. UPC – Industry Open Letter
5. http://en.wikipedia.org/wiki/English_rule_%28attorney%27s_fees%29

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Gwenael Bailly
I think that the future unitary patent and the unified patent court is a good thing for Europe, but this new legislation has to be done carefully. Indeed, I’m convinced that more integration into the European Union is a real need, and a subject as important as the patent policy has definitively to be harmonized. Nevertheless, if this legislation is…
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I think that the future unitary patent and the unified patent court is a good thing for Europe, but this new legislation has to be done carefully. Indeed, I’m convinced that more integration into the European Union is a real need, and a subject as important as the patent policy has definitively to be harmonized.

Nevertheless, if this legislation is adopted with sufficient securities, we might never see “Patent trolls” in Europe. For this, we need to make sure that the law remains as restrictive as it is concerning the patent granting, and patents reviews. If we adopt a smoother system like the one in place in the USA, we will for sure have to deal with the “Patent trolls”.

I’m convinced that those NPEs are very bad for a market such the European one. Indeed, we don’t have the same culture than Americans, and in my opinion, NPEs are just thieves, that don’t bring value to the society. They induce loss of time and money for companies that really want to innovate and damage justice, which is not seen as a business in Europe unlike in this USA. In case of “Patent trolls” would appear, it would be very damageable not only for companies, but also for the entire law system.

So, in one hand unitary patent “promotes efficiency and long-term competitiveness” as it is said in the letter of the 16 companies, but has to be well thought by the authorities in order to avoid such a lame system as in the US.

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Karla Rivera
The debate about the patent system has always been very intense because it provokes a confrontation between two apparently antagonistic aspects: Patents are temporary monopolies operating levied on innovative technologies and scientific advances, and secondly the results of R&D should reach society that enhance the quality of life of individuals. Now it is spreading in the European Union a new type…
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The debate about the patent system has always been very intense because it provokes a confrontation between two apparently antagonistic aspects: Patents are temporary monopolies operating levied on innovative technologies and scientific advances, and secondly the results of R&D should reach society that enhance the quality of life of individuals.

Now it is spreading in the European Union a new type of “Patent Troll”: the great company that controls many patents, so that creates a virtual monopoly in certain markets; an insurmountable barriers to entry system. The patent claims are what determine the scope of the monopoly, protection of the invention which confers an exclusive right to the patent holder. So all patent claims should be thinking about the commercial that really the owner intends to achieve. However, it is increasingly common in practice that patent applicants drafted overly broad claims and conferring more than the “necessary” to protect their commercial purposes. These monsters impede free research. The development of the industry. Using their patents with one aim: to get compensation.

The “Patent Trolls” not acting solely in the United States by chance. There, the amounts to be disbursed to defend a patent trial are so high, that those accused of infringing the patent trying to do everything possible to reach agreement with the plaintiff. Therefore, it is not surprising that companies prefer to agree a price far less high license with patent trolls, and avoid going to trial.

The fact that Europe does not have a single patent law makes these companies can “play” with what they are interested in each country. The ambition of the “Patent Trolls” knows no boundaries, reach Europe, attracted by a virgin to exploit market. It is true that the current European patent system does not offer the same facilities as USA; However structures as unified patent package Reinforce the risk of ‘Patent Trolls’.

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Platiau Sylvain
I think that integrate the "patent market" increases a lot the expected return of legal action and so rise the risk of patent trolls to appear. But I think also that it may be also a good thing if there is no exageration of these "Non-Practicing Entities". Personnaly I think that we could see this type of firm like an association…
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I think that integrate the “patent market” increases a lot the expected return of legal action and so rise the risk of patent trolls to appear. But I think also that it may be also a good thing if there is no exageration of these “Non-Practicing Entities”.
Personnaly I think that we could see this type of firm like an association of defense of private small inventor in the sense that these firms buys patents that private invetor could not protect from copying and, thanks to these firms, small inventors can yet have the return (of a part of it) that they deserve. And could we blame firms to preserve them legal right? For me buy a patent is a investment and they have to have a return on it an nobody else… It’s like Adidas buy a plant and Nike use this plant freely. It doesn’t see to be fair.
On an other hand, NPE that “plays” on the boundary of patent are certainly harmfull for society in general (extra costs for all firms, so prices higher, cost for government …). And in Europe the legal system is made as the exagerations are less possible than in the US (high cost of procedure so NPE could not engage ambiguous lawsuit). Thus if european judges do not work with completly independant specialist in technological field (I don’t think that a judge alone or a jury of normal people are able to discuss what is the extend of a patent) I think that there will be harmfull derives.

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Kasper Vagle
Any attempt to drain the patent system for money without the intention of creating something, or protecting already created product should be avoided. There are similar examples of unethical practice carried out by the "patent trolls" that has happened before. A US based lawyer would several years ago file for patents in various fields. His technique was to drain the…
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Any attempt to drain the patent system for money without the intention of creating something, or protecting already created product should be avoided. There are similar examples of unethical practice carried out by the “patent trolls” that has happened before. A US based lawyer would several years ago file for patents in various fields. His technique was to drain the process by filing additional information from time to time. By doing this, the patent was still kept secret by the patent office, so when someone else developed a product that could have a link with his already filed patent, he made sure that his patent came thorough, and the sued the company that had used a similar idea of the one he had patented.

The example above is shows that there are unethical player out there, and they have to be stopped. They managed to stop the American lawyer, and now its time to change the rules so we don’t have “patent trolls” taking advantage of potential great innovations. The social impact of this actions are important because it does not only reduce the money spend fighting over an idea, but it also makes it easier for companies to focus on innovation in stead of law suits.

Unified patent court is a good thing, if it is executed in the right way. Patents are vital for firms that invest in R&D, to make sure they make a profit of the money invested. The ability to bring several countries together when a patent infringement has happened, and to be able to rule over several countries is an advantage for the company that has had an idea stolen form them. But it also increases the potential power of “patent trolls” as they can now exclude companies using their patents in several countries.

To make a metaphor that might be easier to understand, the electric lines that are set up around town is great for the people that obtains access to power. But people that illegally link themselves to this power lines without any contribution is a bad thing. The same idea goes for patents. Patents serves as a good intention for innovators and developers, but people that are only trying to drain money out of the system should be avoided.

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Jan Sedek
I believe that introducing the unified patent package increases the leverage and thus provides more incentives for patent trolls. To me the argument, that markets of individual countries are big enough does not seem plausible. I don’t understand the legality behind in detail, but if the patent systems are now effectively separated between countries, is it not possible for a…
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I believe that introducing the unified patent package increases the leverage and thus provides more incentives for patent trolls. To me the argument, that markets of individual countries are big enough does not seem plausible. I don’t understand the legality behind in detail, but if the patent systems are now effectively separated between countries, is it not possible for a troll to capture a small market by filing a patent there, and then sew the company that wants to expand to this market? I can imagine that the companies probably file a patent everywhere in case they want to those markets later, but that must be very costly. This cost may eliminate the innovators, who do not possess the means to capture all markets at once. This can serve as an example of what is probably the goal of introducing the unified patent package. By this I mean lowering legal costs for the innovators. Maybe the trolls should be viewed as a necessary side effect of the cost reduction, possibly a side effect that does not outweigh the gains of the reform and maybe cannot be avoided unless the whole patent system is revised.
The fact, that European judicial system is different from the one in United States may lower the risk for sewed companies. However the uncertainty goes both ways and the patent trolls may face higher risk as well. With higher risk for a patent troll to be successful, the expected payoff for the patent troll is lower. Thus the difference in judicial systems does not necessarily make the difference between U.S. and Europe with respect to their patent system.
The European regulatory authorities should definitely learn from the U.S. experience, but they should do it carefully, so they don’t damage the market environment, as it is customary in Europe.

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Fanny Delcroix
The unified patent package that was legally applied from the 1st January 2014 has a number of advantages which could turn into weaknesses. Indeed, the new reform, whose purpose is to obtain an uniform patent in force through the 25 Member States, leads in particular to a reduction of costs due to beneficial translation requirement and to a simplification of…
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The unified patent package that was legally applied from the 1st January 2014 has a number of advantages which could turn into weaknesses. Indeed, the new reform, whose purpose is to obtain an uniform patent in force through the 25 Member States, leads in particular to a reduction of costs due to beneficial translation requirement and to a simplification of administrative processes. We could add multiple positive effects from the new package such as increased quality of the system and so on but here it’s not relevant. In one hand, these latter effects (lower costs and simplification of administration) are advantages for spurring innovation and creating a cooperative atmosphere between the Member States but in the other hand, it leaves a bigger playground for patent trolls. Moreover, the recent agreement doesn’t include enough exceptions or limitations such as prior user rights or research exceptions. Those missing measures encourage opportunistic behavior and therefore the patent trolls. (http://www.law.stanford.edu/sites/default/files/childpage/188509/doc/slspublic/janssens_wp19.pdf) .

The new patent system reveals some weaknesses emphasized by the biggest innovative and influent companies in the world such as Adidas, Microsoft or Google. These latter share their fear about missing points in the UPC. Indeed, they are scared to be involved in bifurcated cases. It would mean that one court judges over the validity of a specific patent while an independent second court takes a decision about the eventual infringement of the same patent. Definitely, this measure would undermine the innovation rather than promoting it.
A second point made by these companies is the power of a court injunction especially under the Unified Patent Court. A patent holder can ask for an injunction if a tierce person/company uses his technology/patent for the business without any authorization. Under the new patent regime gathering more than twenty countries, an injunction could stop the production beyond one country but it would be expanded to most countries in Europe. It would have unreasonable consequences for the Europe Market. I can understand the fear of big companies as those mentioned above. New reforms always scare because what is new isn’t optimal at first. We need to make mistakes to obtain improvements. It’s their duties to point out eventual drawbacks for the European markets or for the competitiveness of the firms commercializing in Europe. Also, they could have brought solutions to it.

Anyway, after collecting information about the subject and reading interviews, articles of the stakeholders, I would like to share my point of view. A system of an uniform patent is the logical continuity in the European integration process since it brings European member states together on one more point. Nevertheless, if we want this to succeed, it is very important to counteract the weaknesses of the regime and the possible unscrupulous profiteers who will point out the failing measures. In my opinion, the unified patent system associated with an Unified Patent Court needs to be questioned and improved once there is a weak point. We don’t have to wait to bring in patent trolls, we need to be proactive and if it means to be even stricter on every case, we then should be.
More generally, the idea of a standardization of the patent rules through Europe is exciting and very ambitious as long as we take into account all the future benefits and concerns.

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Stroobants Benoit
As far as I am concerned I totally agree with the views defended by the companies that signed the open letter. As it clearly said along this article, patents are useful to promote economics and innovation. Patent Trolls are only coming in order to drag this growth by struggling innovation’s development, and are going to take down new business ideas.…
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As far as I am concerned I totally agree with the views defended by the companies that signed the open letter. As it clearly said along this article, patents are useful to promote economics and innovation. Patent Trolls are only coming in order to drag this growth by struggling innovation’s development, and are going to take down new business ideas. I think this kind of practices are completely against the ABCs of the economics development; then it’s clearly justified these companies try to fight this threatening wave coming right in front of them.

We have to keep in mind that without such human creations and such new technologies, the world of today would be very different and a lot of changes would have not been possible. When we talk about Patent trolls, I only see groups of people who want to waste the time and money of companies that give 100% of their capacity making the world we know a place better and better to live. I also think that money can be earned from a thousand ways; so besides the fact that I think trolls are jerks, they have succeeded to invent a borderline but right strategy to take the advantage of patented innovative technologies. Where stand the limit between right and wrong…that’s another issue.

Regarding the unified patent package, I believe things could get worse than ever. Indeed, this package will enhance the patent trolling more than ever; letting them a wild open space to take actions. So in my opinion, with this package coming in Europe, the war has just begin. However, as we already know, European and American conditions are not comparable at all. Then, one first defensive strategy could be to see if we can learn something from each other and try to react properly to these threats we fear.

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Xavier Alexandre Pedrós
Sticking to whether the Unified Patent system will set the basis for increasing Patent Trolls, the answer seems to be related to the extent to which the new framework is translated into costs for Non-Practicing Entities (NPEs). One would expect that, if the Unified Patent setting creates new costs for NPEs, it would be discouraging patent trolls. Patenting implies two sorts…
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Sticking to whether the Unified Patent system will set the basis for increasing Patent Trolls, the answer seems to be related to the extent to which the new framework is translated into costs for Non-Practicing Entities (NPEs). One would expect that, if the Unified Patent setting creates new costs for NPEs, it would be discouraging patent trolls.

Patenting implies two sorts of costs. Firstly, those that arise from registering a patent. Secondly, the costs associated to enforcing and defending the patent. Indeed, previous research indicates that what really matters is the latter component –obviously, this is essential when it comes to NPEs. As already said in the post, it is now possible to obtain patents on a larger market (13 Member States), so registration fees have dramatically decreased. Secondly, most importantly, the costs concerning defending patents are equally minimized, provided the adoption of a centralized court solution. I believe this factor is much more important, since protecting a patent usually requires multiple lawsuits, thereby, the fact of having decentralized authorities exponentially increases the costs.

Who benefits the most from the latter? One would expect that NPEs basic activity is to massively register patents and litigate against other firms. Meanwhile, “actual” innovators should spend relatively less resources on the registering and defending them, provided they are “legitimate” innovators and their main economic activity is to produce rather than to patent. For these reasons, a priori, we should expect increased activity on the side of patent trolls.

It could be somehow argued that, the fact that the European Unified Patent system features a “loser pays costs” setting (as opposed to the American, where each party is responsible for paying its fees independently of the court’s decision) may countervail the increased incentives for NPEs. However, the “loser pays costs” element was already present in most countries before the adoption of the Unified Patent Court. Moreover, we cannot assume that this clause discourages NPEs: they don’t necessarily have more chances to loose (being an NPE is not illegal). Though, “loser pays costs” may mean that NPEs in Europe measure relatively more carefully their actions, as compared to the ones operating in the US.

Altogether, I don’t understand Google’s enthusiastic response. Indeed, the Unified Patent Court ensures cheaper patent registration and enforcement. Yet, as said above, the position of genuine innovators is likely to be worsened, since they are less “dispute intensive”, and so the reduction in costs will benefit NPEs relatively more. Considering this negative effect, the potential benefits of a Unified Patent Court may arise from the potential of having common regulations avoiding patent trolls, if we assume that these do not spur innovation.

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Florent Dauvister
As we have seen in previous courses, patents are at the heart of the European and US innovations. They help the companies protect their secrets and push them to always be looking for new innovations to keep their competitive edges on the other firms in the industry. What we have seen in the US is that patent trolls are both…
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As we have seen in previous courses, patents are at the heart of the European and US innovations. They help the companies protect their secrets and push them to always be looking for new innovations to keep their competitive edges on the other firms in the industry. What we have seen in the US is that patent trolls are both ways for companies uninterested in progress and innovation to make money and brakes to actual innovation because of the increased price of valuable patents.

I do believe that patent packages might seriously put a dent in the the search for innovation both in the US and Europe. More patents falling into the wrong hands not actually looking for innovation but for short to medium term profit. While it is completely legitimate and legal to purchase patents and patent packages, the repercussions of such purchases are not to be ignored and should be strongly regulated in order to offer the opportunity to those who want to speculate on the value of patents and those who want to purchase patents for innovative purposes.

Companies that have signed the open letter make a business of innovating but also to purchase patents to make sure that ideas worth the investment receive the support they deserve. To me, such practices have to be supervised by a European and US authority to make sure that both industries emerging from patent purchases can are both sustainable without hurting either of the industries.

Source:
http://eur-lex.europa.eu/legal-content/EN/ALL/;ELX_SESSIONID=2M37JySS7wsJQvn1Lps1nTl4ThL0JJ2nBYdnJMnLLSQQNHZ1pNSK!-428442889?uri=CELEX:32012R1257

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Fares Yanis
Patent trolls are nocive for the economy and wasteful financially. While patents are made to protect the inventiveness of people, NPE’s (Patent licensing by non-practicing entities ) aim to preclude the use of patents of others by providing litigation problems in order to gain money. NPE’s do not sell products or services, NPE’s typically do not infringe on the patent rights…
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Patent trolls are nocive for the economy and wasteful financially. While patents are made to protect the inventiveness of people, NPE’s (Patent licensing by non-practicing entities ) aim to preclude the use of patents of others by providing litigation problems in order to gain money.

NPE’s do not sell products or services, NPE’s typically do not infringe on the patent rights contained in others’ patent portfolios. They are essentially invulnerable to the thtreat of counter-assertion, which is otherwise one of the most important defensive- and stabilizing-measures in patent disputes. Well as far as I’m concerned, I’m partially agree that « Patent Trolls » is a waste of energy and money, on the one hand, it’s actually draining billions in the economy and it’s not improving on any sides the progress of innovation and technology. But on the other hand, it’s kind of a loophole for many people facing problems during the process of invention, for example if a company could not achieve adequate sales to sustain their business, facing this problem, the company begin to seek a return on their investment through the licensing of their intellectual property. As a matter of fact, those patents have their own pros and cons.

Furthermore, about the decisions on patent cases, in the EU, the decisions are taken by professional judges instead of a jury as in the US. The principal problem is coming from there, because as far as I’m concerned the patent case is likely to be a complex problem, and by this way the jury seems to be a more efficient solution. The concept of UPC and the unitary patent, was made in order to fight patent litigation. The objectives of this new patent system are to reduce costs in patent litigations and to harmonize the EU. The consequences are that this new system will be effective all over the EU, it will be cheaper than to intend an action before the courts of each country in Europe, but it has also a negative side. Let me explain myself : If a patentee decide to take action in justice, he will have the choice to intent his action in any country he wants. Moreover it could lead to some « shopping » . If the unitary patent and unified patent court are set like it is planned, troll patents could be an attractive option, they could be huge sources of benefices. But one problem occurs : bifurcation. Remember that the problem of bifurcation occurs when the action for patent infringement and the action about the patent’s validity are dealt by 2 different courts. In the open letter, they want to improve the transparency as regards the NPE’s. According to my opinion, those propositions can lead to a better future.

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Mathilde Kurz
I think that there might be some arguments in favor of the unified patent package in Europe and some arguments in disfavor of it. First of all, I think that having a unified patent package in Europe might be beneficial for European companies on the worldwide market. I also think that it could increase the power of Europe facing the…
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I think that there might be some arguments in favor of the unified patent package in Europe and some arguments in disfavor of it.

First of all, I think that having a unified patent package in Europe might be beneficial for European companies on the worldwide market. I also think that it could increase the power of Europe facing the United States and China.

Second, according to an article of Le Monde, the unified patent package is supposed to reduce the cost of filing patents in European countries. Indeed, filing a patent is very costly for firms and companies. Moreover, the unified patent package is also supposed to reduce the complexity of filing a patent.

Third, Le Monde argues also that the unified patent package could facilitate a prohibition of selling a product in Europe that could contain a patented technology for which no license would be paid to the holder.

But the unified patent package could have some disadvantages in term of ‘Patent trolls’. Indeed, some say that a unified patent package let the door open to patent trolls in Europe, which is not necessarily a good thing for European companies that invest in R&D in order to develop new products.

Plus, according to an article published in the Harvard Business Review: “… many research studies suggesting that patent litigation harms innovation. And three new empirical studies provide strong confirmation that patent litigation is reducing venture capital investment in startups and is reducing R&D spending, especially in small firms”. The article also argues that the more a firm is performing with its R&D, the more it is likely to be submitted to a patent troll.

In their open letter, companies argued that patent trolls could allow complainants to get a quick offense decision which comes with an injunction requiring a prohibition of products selling in most of the European market even before that the validity of the patent has been determined.

Sources :

http://www.lemonde.fr/technologies/article/2013/09/26/des-entreprises-s-alarment-de-l-arrivee-de-patent-trolls-en-europe_3485720_651865.html

https://hbr.org/2014/07/the-evidence-is-in-patent-trolls-do-hurt-innovation/

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Nitish Aggarwal
After going through the various articles and links posted on the website, I feel that the open letter certainly raises some valid points. However, on the whole, the move towards a unified system seems to be a commendable one, and one which should have more benefits than negatives. Let us look at the point of view of the companies first.…
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After going through the various articles and links posted on the website, I feel that the open letter certainly raises some valid points. However, on the whole, the move towards a unified system seems to be a commendable one, and one which should have more benefits than negatives.

Let us look at the point of view of the companies first. A lot of the companies who signed the open letter are the big innovators of this era and would certainly be hampered if patent trolls get more leverage in the European market, akin to the one they are enjoying in the American market. Some noteworthy points raised by the companies are:

1) Since the rules will apply to the whole of EU, with some exceptions, an injunction would be more hurtful. Now this does make a lot of sense from a common sense point of view. Valid infringements should be duly penalized, however, patent trolls might exploit this opportunity to ‘extort’ some money from potential innovators.
2)Obtaining patents will be a lot more easier. However, again this is a contentious point as it is certainly a laudable intent. Simplifying granting of patents across EU is a commendable measure, and one which should likely foster innovation and an increase in the number of patents. Whether the quality of these patents is up to the mark is another question though.
3) The choice of venue i.e. the choice given to the patentee for allocation of patent infringement is the one feature that could possibly attract a lot of trolls. Theoretically, a troll operating in all of EU can choose from the ruling system best suited to him. This is especially more significant since EU is probably less homogeneous than the US.

However, on the other hand, I feel the European ruling system is sufficiently different from the US system and especially in some critical areas which should ensure that patent trolls are not able to flourish in the European environment. The presence of a professional judge ruling on patent cases and a ‘loser pays costs’ system should certainly help offset some of the stronghold that NPE’s have in the US market.

Overall, I feel that the proposed move towards the unified system is a good move, as the subtle differences between the US and the European ruling systems should be good enough to prevent a large outbreak of patent trolls into the EU markets. Similarly, patent management would become relatively easier for companies as rights would be granted across the EU, rather than on a country to country basis. This move should be welcomed by organisations though as patent litigation costs will come down drastically and the process on the whole will be more efficient.

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Benoît Petre
After reading those two articles and most of their links, I see both pros and cons about the issue of patent trolls. On one hand the function of those patent trolls is to make sure that rights given by some legitimate authorities are enforced. Who can be against that? Imagine that a patented technology developped by a small business…
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After reading those two articles and most of their links, I see both pros and cons about the issue of patent trolls.

On one hand the function of those patent trolls is to make sure that rights given by some legitimate authorities are enforced. Who can be against that? Imagine that a patented technology developped by a small business is imitated without any authorization by a big company. The small business may be reluctant to file a claim because of the huge cost it implies. At the end there is a possibility that the small firm does not reap the fruit of its research. This possibility is much smaller with patent trolls. Indeed one of them could buy the patent to the small firm, thus rewarding fairly the innovator, and then going to court knowing that it has the strength to engage in legal battle with a big company. Therefore, it is not surprising that the fiercest opponents of patent trolls are big business such as the 16 signatories (Google, Apple, Microsoft…) of the open letter presented on IPdigIT.

On the other hand, the behavior of some patent trolls is much more questionable. Many of them take advantage of the cost, uncertainty and lenght of court’s ruling to file numerous claims knowing that most firms will pay them to stop doing so rather than going into some troublesome legal procedures. This method can clearly be compared to blackmail.
Also, patent trolls may weaken cumulative innovation as explained by Green and Scotchmer (1995). Indeed innovation became a risky activity if the use of any existing technology (which was patented without you knowing that) may turn into expensive battle in court against aggressive patent trolls.

In a perfect world, the best solution to these devious behaviors would be the implementation of a swift, cost-effective and efficient legal system. In this way, “blackmailed” firms would not be afraid to go in court and defend their rights.

However, such solution would be nearly impossible to implement in the real world. Because of the technical nature of patents, those trials will always last months and months. A realistic solution would be to improve the balance between the uncertainty and risks faced by firms and patent trolls. Firms are ready to accept disadvantegeous settlement because they feel they have more to lose than the patent trolls. If negative court’s rulings towards patent trolls were truly costly to them (significant fines, financial compensations…), they will be more reluctant to get into a legal battle about a patent whose validity is questionable.

Regarding the issue of unitary european patent, I don’t think this policy will lead to a significant developpement of troll patents in Europe. As explained by Alain Strowel, the differences between the american market and the so-called european market (=13 European countries including the U.K., France and Germany) will remain strong in many fields : legal culture, jury vs. specialized judges… . According to me, we should ask another difference to this list which is the fact that the validity of european patent is asserted ex-ante. Therefore, an European patent troll will not be able to file a claim about a patent that should not have been given in the first time (as it may happen in the U.S.).

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Aditya Dogra
Firstly I would agree with some of the points highlighted which assert the negative influence of patent trolls. These firms have no business interest to defend while their primary aim remains to extort money from big and small firms alike. Target firms must now divert their resources towards defending lawsuits, a precious waste of time and money which in the…
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Firstly I would agree with some of the points highlighted which assert the negative influence of patent trolls. These firms have no business interest to defend while their primary aim remains to extort money from big and small firms alike. Target firms must now divert their resources towards defending lawsuits, a precious waste of time and money which in the long run slows down innovation.
In the context of unification of patent package in Europe however, I would say that concerns of the 16 firms highlighted in the letter are a tad bit exaggerated. We must understand that the culture of patent trolls in the US has been perpetuated mostly due to two factors:
1. A process in which jury decides such cases, something which significantly improves their odds of winning the lawsuit
2. The great number of cases in which millions of dollars are awarded as a compensation to the trolls
Considering that these 2 factors don’t exist in case of Europe: such cases are adjudged only by professional judges, payouts involved are much smaller. Along with the fact that it would be extremely expensive even for the trolls to engage legal service professionals in Europe it is hard to imagine that we would get to see patent trolls in Europe anytime soon.

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Cedric Couvreur
After reading different articles on the matter, I am definitely against patent trolls. These companies do not bring any added value to the market and prevent good-performing companies to innovate. I think after patents have been granted, authorities should check what companies do with their patents. Maybe before granting the patent, the company should give some explanation of how it…
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After reading different articles on the matter, I am definitely against patent trolls. These companies do not bring any added value to the market and prevent good-performing companies to innovate. I think after patents have been granted, authorities should check what companies do with their patents. Maybe before granting the patent, the company should give some explanation of how it will exploit the patent and if he has enough money to do so. If his purpose is to file a patent and resell it, there is no problem with this but it should be done in a certain time-frame. If the patent is not sold during this period, the patent could become obsolete and put back on the market. I am well aware that this solution is not the best because some companies could wait a couple of years before acquiring the patent in order to put pressure on the company to sell the patent at a lower price (a lower price is always better than nothing – if the patent would be abolished). But, an argument in favour of my proposal could be that some patented technologies are only useful for a certain period. After a couple of years other companies will certainly find another way of manufacturing the product and as such loose the first-mover advantage. So maybe it would be better to acquire this patent quickly after all.

As far as the unified patent package is concerned, I think it is a great idea. As White (2012) says (1) it is paving the way for an “improved and cheaper enforcement of intellectual- property rights.” Michel Barnier also adds “creating a lower-cost European patent is one of several reforms that could aid innovation and economic growth” (1). Indeed, this unified system will bring along more patents in Europe since it will be easier to obtain patents across different countries.

A possible disadvantage of this unified patent package is the advent of more patent trolls as explained in the article. I guess the concerns of the companies writing the open letter are legitimate since these problems have occurred in the US where they already have a unified patent system. I think the concept is nice but there should be stricter rules regarding the issuance of a patent and what the company ultimately does with the patent. I already talked about a possible solution in the first paragraph. It is evident that the companies that have written the open letter are concerned since they are the big companies that bring a lot of innovations. Patent trolls are especially aiming at obtain money from these type of big corporations by suing them if they create a similar product.

In a nutshell, we can thus say that the unified patent package is useful and should be implemented in order to foster innovation. But, on the other hand, lessons have to be learned and we should try to avoid the scenario from the US where this system has brought along a lot of patent trolls, impeding big companies of innovating. In the end these big companies lose as well as their consumers so to protect society as a whole, measures have to be taken.

Sources:
(1) White (2012) http://www.bloomberg.com/news/2012-06-29/eu-leaders-reach-agreement-on-eu-patent-system-van-rompuy-says.html

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Christophe Gérard
A patent troll is a person/company who enforces patent rights against infringers in order to collect fees, without manufcaturing products or supply services (Source : Wiki). As it said in an other comment on « ipdigit.eu », an innovation can only be achieved by using the results of another. Patent trolls could slow down innovation and have negative impact on…
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A patent troll is a person/company who enforces patent rights against infringers in order to collect fees, without manufcaturing products or supply services (Source : Wiki). As it said in an other comment on « ipdigit.eu », an innovation can only be achieved by using the results of another. Patent trolls could slow down innovation and have negative impact on economy or research. When companies need to nonstop worry about patent litigation they give less time into creating new products or serving customers. Patents trolls become a waste of time for everybody and some innovators spend more money on patent ligitation than R&D.

So I agree with companies that signed the open letter, but I think patent trolls can’t be as excessive as in US. Why patent trolls will have less influence in Europe than in United States ? Because the mentality of people in Europe is not the same. A lot of people in US file a claim only in order to earn money (for instance, the man who put his cat in the microwave who attacked the producer). Moreover, the justice and the judges are not the same here. Indeed, we only have professional judges rule on patent cases compare to US.

To conclude, I think we don’t have to worry about entrance of patent trolls in Europe which will have less impact than in US. I think the best thing would be to prohibit patent trolls in order to encourage innovation and the research.

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Eleanor-Jenifer Coets
I partially agree with the authors of the open letter. In my opinion, "patent trolls" are important obstacles to innovation and discourage ingeniousness. They have a right to show their dissatisfaction vis-à-vis that kind of practices which are totally against the basic idea of what a patent is and can bring to society as a whole. Moreover, the UPP…
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I partially agree with the authors of the open letter. In my opinion, “patent trolls” are important obstacles to innovation and discourage ingeniousness. They have a right to show their dissatisfaction vis-à-vis that kind of practices which are totally against the basic idea of what a patent is and can bring to society as a whole.

Moreover, the UPP project could lead to an increase in the number of unlawful injuctions, as they would only be based on the will to be protected in a lot of very important countries (mainly Germany and France). That is against the principle of “legal security”.

But in my opinion, their fear may be exaggerated (which it might be positive). In fact I really think that their open letter is based on the situation happening in the USA and on what they think could happen in EU. I am not quite sure that the amount patent trolls would significantly rise up after the enactment of the UPP.
Taking into account the fact that our Patent-granting system is very strict, one can also easily realise that we (European citizens) do not have the same type of approach in relation to Justice. The fact that our judicial system is rarely “jury-based” and that we do not sue wildly should have a huge impact on that practice.

But one can not really be sure that it will not happen. Why not discuss with the authors of the letter in order to take their fears into account, compare the American and European situations and take precise advice on the topic. European authorities could take example on the American situation in order to prevent the increase in non-practicing entities, with one single goal : protecting people’s inventiveness.

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Louis du Roy
"patent trolls" constitute a clear threat to innovation with the European Union. This threat can eventually become actual when the new unified patent system will come into effect. As highlighted by several companies in the open letter, " patent on a complex product. A rule that does not offer sufficient guidelines on when to grant injunctions will create strong incentives…
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“patent trolls” constitute a clear threat to innovation with the European Union. This threat can eventually become actual when the new unified patent system will come into effect. As highlighted by several companies in the open letter, ” patent on a complex product. A rule that does not offer sufficient guidelines on when to grant injunctions will create strong incentives for abusive behaviors and harm the innovation that the patent system is designed to promote”.
However, it is true that a unified patent system in Europe would reveal important positive economic opportunitities which should not be neglected. Indeed, the new system will for example considerably bring down the costs for businesses to initiate patents.
There is therefore in my opinion the need to balance the different interests and find a common ground allowing the benefits of a unified system to be implemented while erecting a strong barrier against potential “patent trolls”. I believe though that such common ground would be difficult to impose. The European comittees should therefore consider the ideas gathered in the open letter addressed by the big companies in order to find inspiration.

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Marie Miron
These patent trolls are just using the weaknesses of the patent system. They are a restraint to innovation which is firmly promoted by the IP rights. They can be counterproductive. Because of these patent trolls, there was a rise in litigations but not in innovation. But I believe that these so-called trolls could be useful for the market. What they…
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These patent trolls are just using the weaknesses of the patent system. They are a restraint to innovation which is firmly promoted by the IP rights. They can be counterproductive. Because of these patent trolls, there was a rise in litigations but not in innovation.
But I believe that these so-called trolls could be useful for the market. What they do is legitimate. They have a right to do it. The fear of ending up in a litigations with these trolls could prevent people from copying ideas and to create their own.

The unified patent package does reinforce the risk of “patent trolls” landing in Europe as it will facilitate the “patent-hunting” for the trolls. The consequence of this unified patent package is that it will create a larger “play field” for them.

So I can only agree with the companies that signed the letter. Even if they hypothetically could be useful, the only thing the trolls have done yet is to be a threat for innovative companies!

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Darya Shatova
What patent trolls do is an obvious misuse of patents. While these are meant to protect and promote innovation, NPEs reverse the effect by precluding others from using the invention and not using it themselves. Patent trolls are therefore a problem that we have to confront and solve. However, I do not quite agree that the institution of a UPC…
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What patent trolls do is an obvious misuse of patents. While these are meant to protect and promote innovation, NPEs reverse the effect by precluding others from using the invention and not using it themselves. Patent trolls are therefore a problem that we have to confront and solve. However, I do not quite agree that the institution of a UPC at EU level considerably increases
the risk of patent trolling.

First of all, I’d like to address the argument that high costs of judicial proceedings in the EU will make companies settle instead of taking the matter to court. These high costs, however, do not only affect the decision of the company, but also the one of the potential patent troll. Will an NPE risk an extremely costly litigation knowing that the outcome, even if favorable, may not be worth it? Indeed, the amount of damages awarded in the EU is much lower than in the US. For this reason, I believe that trolling is not likely to be as seductive in the EU as it is in the US.

In addition to this, decisions on patent cases in the EU are taken by professional judges instead of a jury. This is a considerable difference because patent cases are usually very complex and technical. In my opinion, a jury is more likely to take a decision favorable to a NPE than a judge who has deep theoretical knowledge of the matter and is experienced in adjudicating similar cases. Members of a jury may not even be aware of the “patent trolling” phenomenon, whereas the judge may be able to identify an entity that is using its right in bad faith. In fact, the establishment of a UPC can help combat patent trolling by providing a consistent case law on the identification and dismissal of NPEs.

The EU has an opportunity to take the US patent trolling issue into account and adapt its legislation in order to prevent such a phenomenon in Europe. For instance, at patent filing level, an additional requirement may be added obliging the inventor to submit a plan of implementation that justifies the award of the patent. It’s a sort of business plan describing how the inventor is planning to develop/commercialize the invention.

Generally speaking, we should focus less on the word “property” when referring to patents as an IPR. In such a case, there would be a tendency to think that patents deserve a protection that is almost absolute just like any other property in the sense of the Civil Code. Instead, I believe that the rights of a patent owner must be interpreted in the light of the objective pursued, which is to provide an incentive for innovation. In other words, a patent must not be viewed as a monopolistic detention of a right, but rather a temporary monopoly allowing the owner to develop or commercialize his invention. From this perspective, the judge confronted to a NPE will be less likely to hold in its favor. He will not only try to determine whether the entity detains a valid patent or not, but also look at the concrete actions undertaken for the usage of the patent (has there been any further research/improvement on the invention? have there been attempts to industrialize/commercialize the invention? etc.). Trolls will not pass through this functional analysis.

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Chloé Ponsart
In my opinion, I think we have to fight as much as possible against patent trolls because these entities do not respect at all the first purpose of the patent: promote innovation, as they register rights without doing anything effective with these. Indeed, I think the unified patent package may lead to a reinforcement of the risk of patent trolls because…
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In my opinion, I think we have to fight as much as possible against patent trolls because these entities do not respect at all the first purpose of the patent: promote innovation, as they register rights without doing anything effective with these.

Indeed, I think the unified patent package may lead to a reinforcement of the risk of patent trolls because of the effect of new validation of the patent on a larger scale than before (named the “cross-border effect”): it will be possible to obtain a legal injunction valid on a large market, including important countries such as Germany, France and UK. Whereas today, the scope of the injunction is much more restrictive: it is limited to one single country. But on the other hand, this unified package is a good tool to permit to all countries to fight actively against the patent troll, and on a larger scale.

I understand quite well the situation of the companies and the reason why they signed the open letter, they want to protect their interest, their customer and avoid high judicial costs before the court.

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Ruys Marie
I think the companies who have written the open letter have every right to worry about an incoming of patent trolls on the European Market. The future Unitary Patent and the Unified Patent Court agreement will attract them, by making the gain of a legal injunction easier. The possibility to gain money will be higher due to the larger…
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I think the companies who have written the open letter have every right to worry about an incoming of patent trolls on the European Market. The future Unitary Patent and the Unified Patent Court agreement will attract them, by making the gain of a legal injunction easier. The possibility to gain money will be higher due to the larger market.
I also completely agree with the companies, when they write that “after all, the whole point of a patent system is to promote innovation. Patents encourage inventors to publicly disclose their inventions, sharing knowledge and spurring further progress while recouping their investment”. “Patent trolls” are just doing the contrary. The phenomenon of patent trolls in USA is a big problem: it has a huge economic impact and is an obstacle to innovation. It seems a bit ironic, knowing that the goal of a patent is to promote innovation. It is true that patent trolls are simply companies that put their right to use. However, having a right does not mean you can abuse it. By abusing of that right, they just destroy the spirit of that right.
Nevertheless, I think the advantages of the agreement are bigger than the risk to see the patent trolls arriving. It will promote efficiency and a long-term competitiveness. It is, I believe, sure that the patent trolls will likely be more active but I highly doubt that they will have as much influence as in US. As stated in the article, US grants large penalties, much larger than in Europe, and the fact that US trials are often made with a jury have to be taken into account. There are way too much differences between Europe and US to compare both effectively.
Even though I understand and support the companies who worry about patent trolls, I am not completely convinced by the arguments stating that there is a “high” risk of having patent trolls. Most of these companies are American, which explain maybe why they worry so much, seeing the situation in US. The worries seem to come from the “bifurcation” procedure and the new high leverage of the patent. I do not exactly see why the “bifurcation” procedure would suddenly be a problem, since it is already used in Germany. For me, the only true argument that can worry is therefore the high leverage of the patent, but for the reasons explained above, I do not think it will have a so big impact, especially if we look at the advantages the agreement will bring.
In conclusion, I think that patent trolls are indeed a risk, but that companies may be overreacting. Nevertheless, I think it would be great to look closely at the phenomenon in US and take measures, like the ones being discussed in US, to prevent the scenario of having patent trolls on the European Market. One is never too careful: the agreement should be written with caution and make sure to not let the patent trolls taking over, in order to truly promote innovation.

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Danckers Adèle  
I do not think that patent trolls will enter Europe with the unique patent package. I actually think that they are already there. As stated in the article: one does not integrate the European market without the German market. Thus, the trolling companies are probably already there using the German market to control the European market. But I do think that…
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I do not think that patent trolls will enter Europe with the unique patent package. I actually think that they are already there. As stated in the article: one does not integrate the European market without the German market. Thus, the trolling companies are probably already there using the German market to control the European market.
But I do think that there number will increase through the unique patent package. Obviously this is a massive opportunity for trolling companies to invest easily the European market. It is even easier than by controlling the German market. They just have to apply for a European patent and once they get it, they will control the innovation in all the Member States. It is even easier and safer than through the control of the German market.
So, obviously, the risk of patent trolling in my opinion is enhanced. Europe always has looked at US as a federal model. So maybe or even certainly, will they consider the fault US made in the past by allowing too much patent trolling and quickly find solutions and answers to this phenomenon. Maybe will Europe draws itself from the US initiative. I do think that it would be a very good solution for patent trolling to have some sort of monitoring of the patent right once it is granted. It would allow the system to invalidate a patent only used for trolling. It will be very dashing for the Europe to create a system to manage and avoid patent trolling similar to the US project.
But the question has to be raised: is patent trolling something bad ? The concept as such is only the use by a company of a right they received from the law. Why should it be avoided if it is allowed by the law ? In a certain way, it is part of the way the market is working and, yes this market is not always fair, but it is the way it is: each system has downfalls and if companies are smart enough to use them to their advantage, why not ? As an easy shortcut we could say that if we eliminate patent trolls because it is not fair, we might first need to eliminate illegal child labor that also profits amoral companies. So if we really want to avoid patent trolling, prohibiting it in the law would be the best way to do so. Otherwise it might stay something that companies do because they have the right to.

I believe the companies’ reaction are totally understandable. Those companies know exactly what is happening in the US and what are the consequences of this massive patent trolling phenomenon. They are in their right to defend themselves and try to avoid a similar situation in Europe. But they have to realize that the situation will not be as bad as in the US. I indeed think that the American context has much to do with the massive phenomenon. Americans are known to have a tendency towards judiciary resolution. They throw trials for nothing and everything and their legal and judiciary system in not at all the same as the European one. Europeans are much more composed. Obviously, US also has massive damages awarded as compensation. That system does not exist in Europ. Those elements make me think that the patent trolling tendency will be present in Europe but not at the American level.

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Alain Strowel

Please distinguish European patents from Unitary patents (although the last ones will be European patents with a unitary effect)!

Pollart Hélène  
In my view, it’s interesting to have a unified patent system because it will certainly lead to promote innovation and competitiveness between countries of Europe. However, patent trolls will maybe also take part of this new system and that’s a bad thing. Indeed, when they are concerned in a trial, they often harm consumers. The problem with patent trolls is…
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In my view, it’s interesting to have a unified patent system because it will certainly lead to promote innovation and competitiveness between countries of Europe. However, patent trolls will maybe also take part of this new system and that’s a bad thing. Indeed, when they are concerned in a trial, they often harm consumers. The problem with patent trolls is that we have many connections between NPE (non practicing entities) and operating companies, they are negotiating between themselves. We tend to monetize patent rights. It’s because we say the litigation is very expensive and it’s better to negotiate, in order to pay few costs. However, some say this is “not that expensive to go to court in Europe” ( http://www.iam-magazine.com/blog/Detail.aspx?g=b49115b8-922b-400e-8134-6ec61f0a7d48 ). Indeed, it’s cheaper than to litigate in the USA. Moreover, NPE try to have high quality of their patents to always win their cases and so, they will get a lot of money by almost doing nothing.

As regards the unitary patent and the UPC, they are made “to enter a brave new world for patent litigation” ( http://www.iam-magazine.com/Issues/Article.ashx?g=26fcd519-6985-4aa4-a3c4-f7f02c7be3ef ). We want to have more innovation and competitiveness. The objectives of this new patent system are to reduce costs in patent litigations and to harmonize the EU. Indeed, this new system will be effective all over the EU, except Italy and Spain. Furthermore, it will be cheaper than to intend an action before the courts of each country in Europe. The problems are that patentee will so have many possibilities to intent their actions (we can talk about “forum shopping”). If the unitary patent and unified patent court (UPC) are set like it is planned, it could lead to “forum selection and cause enough uncertainty to make trolling an attractive option” ( http://www.iam-magazine.com/blog/Detail.aspx?g=b49115b8-922b-400e-8134-6ec61f0a7d48 ). Furthermore, the new system maybe will encourage patent trolls because patents will be recognized on the all territory of the EU, except Italy and Spain, and so it will bring more benefits to patent trolls. However, we do not seem to listen to propositions made by some people to resolve those issues that can rise with the new unified patent system.

Regarding the open letter, they say this system can lead to harm consumers like in the US. Indeed, the economic impact of patent trolls is enormous. We also have to look at the problem of bifurcation. We say it’s an obstacle and a negative point to the new system. However, it already exists in Germany and it causes no problems. Remember that the problem of bifurcation occurs when the action for patent infringement and the action about the patent’s validity are dealt by 2 different courts ( http://ipkitten.blogspot.be/2013/03/bifurcation-of-european-patent.html ). In the open letter, they say they want a system in which patent trolls have to prove their patents are valid and a system with more transparency as regards the NPE’s. They want to ensure innovation ( http://googlepolicyeurope.blogspot.be/2013/09/troll-proofing-europes-patent-system.html ). In my view, the issues they raise in the letter are not always justified but we have to take into account their propositions to fight against patent trolls. Indeed, according to me, those propositions can lead to a better system (even in the absence of patent trolls!) just because it increases seriousness in the application for patents.

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Raphaël Boucquey
Patents trolls as such may be less disregarded in the European Union than in the United States where the ideal of the American dream makes people think that if they have the willingness to achieve something and the originality to do so, they have to be rewarded for what they do: if a patent troll is in the way and…
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Patents trolls as such may be less disregarded in the European Union than in the United States where the ideal of the American dream makes people think that if they have the willingness to achieve something and the originality to do so, they have to be rewarded for what they do: if a patent troll is in the way and prevent a dynamic entrepreneur from making money out of his motivation, it seems truly unfair to them.

However in Europe, the myth of the entrepreneur who gets rich only by his work is less implanted in the cultural background. Important corporations and old firms rule the main markets and it leads to very few new projects born out of nowhere.

This cultural difference might lead to the acceptation of friendly non practicing entities, if they are ready to settle and accept, without using the legal proceedings, to license their patent and give the right to those ruling big corporation to use their inventions.

In order to foresee the potential arrival of patent trolls on the EU market with the enforcement of the new Unified Patent Court system, one needs to compare both systems and encompass the features that made such a biased usage of the American patent system possible.

First of all, concerning the judicial system as a whole, judicial proceedings in the US are much more expensive than in the EU, they are way more difficult to predict (since juries are awarded in some civil cases) and they are likely to outcome on way greater damages .

Second, concerning the granting of patents, the European and the American systems are not the same: in the American system, weak patents are granted, patents which are so wide that they impeach other companies to create and market a product which is not the same but still infringing the patent. However, those patents are unlikely to be given an enforceable power in front of a court: the only use they have is for non-practicing entities to put pressure on other firms and force them to settle.

In the European Union, and as long as the European Patent office is concerned, the patent are more evolved and more detailed, since there is an overview of the granting entity. This means that non practicing entities would be granted a patent narrow enough to permit the other entities to come and produce in the same field and that these patents would only be granted if the non practicing entity makes important and costly researches.

Thirdly, concerning the bifurcation mechanism, as already pointed out, the existence of bifurcation as such is not a threat of seeing non practicing entities landing in the European Union: the system is structured enough in order for companies to predict when they are in infringement of a patent or not.

To conclude, the threat of patent trolls does not seem so important to me: the most important featurs of the European market does not seem so welcoming for such non practicing entities, which still have to make sure they are sustainable: in a closed and low-damage awarding system, it is not so sure.

Nonetheless, the European law maker should hear the companies’ letter, since they are the actual actors and they make the European market as it is. A good law is one that also takes into account the position of the subjects that have an interest at stake.

Tomorrow will tell if the non practicing entities will find in Euroope a new field of practice.

sources:
https://docs.google.com/file/d/0Bw8Krj_Q8UaEd3U1dUJ3SVp6LTQ/edit
http://www.huffingtonpost.com/2012/11/08/apple-rounded-rectangle-patent-ipad_n_2092439.html
http://www.reuters.com/article/2013/11/19/us-apple-samsung-lawsuit-idUSBRE9AI0UU20131119

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Killian Sheahan
Open Letter: • Two issues with UPC rules of procedure ○ Bifurcation § There is no logical rationale for separating decisions on patent validity and infringement to two different courts other than workload in my opinion. § However, if the separating of these issues is the practice, then there should be no compromise on the quality of their adjudication. § As reported…
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Open Letter:
• Two issues with UPC rules of procedure
○ Bifurcation
§ There is no logical rationale for separating decisions on patent validity and infringement to two different courts other than workload in my opinion.
§ However, if the separating of these issues is the practice, then there should be no compromise on the quality of their adjudication.
§ As reported in this letter, there are no guidelines on how to decide such matters
§ I agree with the idea raised in the letter to have a stay of proceedings granted more easily in instances where validity of the patent comes into question.
○ Injunctions
§ This letter alludes to the lack of specific guidelines in respect of injunctions as well as in instances of bifurcation.
§ Considering that the application of an injunction rule is done so in a rigid fashion, there needs to rules on how it is to be applied in order to avoid rewarding “unprincipled litigants”.

Paul Belleflamme Article

• I do not find this article persuasive to my assessment of patent trolls. Belleflamme gives one example of a small company fighting a giant as a david and goliath metaphor. However, from what I understand, patent trolls aim, in the majority, to use the leverage they gain from being the owner of a patent in order to extort excessive royalties from motivated, innovative and active companies. These patent trolls are stifling the success of companies who are sidetracked and forced to put time and financial resources into solving the resulting legal disputes instead of becoming more profitable and inventive.

Judicial Blackmail

• I concede with the term of ‘judicial blackmail’ to describe the actions of patent trolls. It is true that one can and should enforce their own legal rights but the motive for doing so is also to be considered. To recall Belleflamme’s example, the small company, Mirror Worlds LLC., wanted to enforce their right to a certain technological development that had been used by Apple. Mirror Worlds is an active company that is attempting to invent and produce. Patent trolls or ‘Non-practicing Entities’ own and defend their patents for the sole purpose of financial reward.

Patent Quality
• In addition to the lack of guidelines in governing patent disputes, patent quality is another source of patent trolls. If the granting of patents was more selective then perhaps it would make it harder for NPEs to conduct their practices. If there was more examination into the patent applicants and their motives then perhaps there would be less patents granted to companies who have no intentions to use them for innovation.

U.S. Position
• Patent trolls are widespread in the US and it is clear from the statements from Barack Obama that they are not perceived as being positive for industry.
• It would be useful to look to the U.S. as an example of dealing with patent trolls.
• Exposing patent trolls through transparency of NPEs is an effective detterent against their practices. However, this transparency is required at the patent application stage of proceedings, not when the patent has already been granted.

European Position
• With the forthcoming unitary patent, having the ability to file for infringement in all Member States in one application will undoubtedly be an incentive to patent trolls.
• As aformentioned, by making patent applications more transparent and by questioning the motives of the applicants will help to decrease the leverage of patent trolls and NPEs.

Conclusion
• In conclusion, I believe that the unified patent will entice patent trolls to become active within the Member States. Therefore, it is necessary to put preventative measures into force. I agree with the position of the companies who signed the open letter. The suggestions that they proposed will serve as a detterent to the activity of patent trolls in Europe.

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Zaniewski Jan
In my opinion, the companies that signed the open letter are in their right as it is to worry about the consequences of the unified patent package. Patent trolls already exist in the US because of the culture of bringing nearly everything in front of a court, but also because the market size is huge and that such an action…
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In my opinion, the companies that signed the open letter are in their right as it is to worry about the consequences of the unified patent package. Patent trolls already exist in the US because of the culture of bringing nearly everything in front of a court, but also because the market size is huge and that such an action could bring a lot of revenues in the worlds first economy. If the regulation is united in Europe, the motivation of those patent trolls could be even bigger and they may appear on our markets too.
Furthermore, the price of the legal actions is also very high and this would be one more pressure effect on the suited companies.

I also believe that this business model is not a “healthy” one, as Obama declared it. I believe that this is a negative trend that causes problems in the USA and it wouldn’t be good to give incentives to this kind of business model to develop in Europe.

The companies that signed the letter are thus wisely defending their interests on our continent. It is a matter of their own profit first, this is not discussable, but it will also avoid other companies to suffer from patent trolls. Maybe our regulators should review the unified patent package in the end.

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Daniel Scurtu
I'm amazed that the more obscure term "patent privateer" (let's face it, not everybody has heard of this term), which has excellent wording, has an easy, intuitive and accessible explanation for everybody, but "patent troll" which is more commonly used, isn't so transparent. What is a troll? The most common incarnation of a troll is that of a creature that…
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I’m amazed that the more obscure term “patent privateer” (let’s face it, not everybody has heard of this term), which has excellent wording, has an easy, intuitive and accessible explanation for everybody, but “patent troll” which is more commonly used, isn’t so transparent.

What is a troll? The most common incarnation of a troll is that of a creature that waits under the bridge for travelers, then jumps out and asks for a toll, otherwise they will attack/eat the traveler (in some versions, they just attack). They do not own legal rights to the bridge. And they did not build the bridge.

So this is a great illustration of the opportunistic behavior that patent trolls display. I just wanted to clear it up for anyone who isn’t familiar with the exact behavior of patent trolls, since there are many myths around.

Now in order to understand why trolling and privateering are so commonplace, we need to consider the circumstances. There are 2 elements that enable patent trolling:

#1 – patent laws and their interpretation – this is trivial, not going to go into this

#2 – the norms in the legal system. This is important: the norms are not formally written laws and regulations and they are not common-law precedents. They are simply the “way of doing things”. The culture of the legal system and the economic environment as a whole with respect to various legal issues. For instance, while the law does not discriminate between genders when determining child custody after a divorce, in over 2/3rds of disputes, the mother gets custody, since the general attitude is that mothers make better parents (unless the evidence is overwhelming).

As for how #2 relates to patents and litigation… well… the US is an extremely litigious country. Partly due to people having a slightly more self-entitled attitude (sociological argument, not going to go into it), and partly due to the legal system that makes it easy to sue for anything. Recall the McDonalds hot coffee burn cases when people got settlements of hundreds of thousands of dollars.

So damages, unless we’re talking contract law, which disallows punitive damages, are traditionally pretty high. If I’m not mistaken, for most categories of damages in similar cases, the US courts typically award greater amounts to the plaintiff than the EU.

This is what the trolls are taking advantage of. Since these cultural norms of the legal system are unwritten, you can’t rely only on tweaking existing laws.

And this is what makes trolling and privateer so ridiculously outrageous. The value of a patent is not the value of the technology, right? Sometimes you can make more money litigating than you could by marketing the product till the end of time.

What we need to prevent troll and privateers from suing is a set of principles based on the philosophical purpose of intellectual property.

What is the point? To stimulate innovation so that society benefits.
So the immediate questions to ask are:
– does the holder of the patent make any effort to implement the technology and market it to make a profit?
– does the holder of the patent make any effort to sell the technology to someone who would market it for profit? Either lump-sum or royalties…
– what are projected profits (really hard to predict, though) compared to the damages/royalties/settlement that the plaintiff is demanding? (it shouldn’t be much higher)

To be honest, I don’t like the direction the EU is heading into. It’s trying to be more like the US because the policy makers believe that the patent system was solely responsible for the US’s innovation lead, and they believe that the patent laws are heading into the right direction. It seems to me they are too concerned with “who is right” and “who is wrong” and are missing the main point of patents: to stimulate innovation.
The law may be written well or it may be written badly, but unless they keep the central question in mind, it might not matter.

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Chirag Sachdeva
Patent trolls may or may not rise with the new UPC coming into picture, but whatever be the repercussions, would that be a sufficient enough reason to roll back something which holds so much promise in itself. With the new patent system coming into picture, it is bound to increase the number of patents that get filed in EU, which is…
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Patent trolls may or may not rise with the new UPC coming into picture, but whatever be the repercussions, would that be a sufficient enough reason to roll back something which holds so much promise in itself.
With the new patent system coming into picture, it is bound to increase the number of patents that get filed in EU, which is already a very a less number and definitely needs a boost. The increase in the ease of the process is going to have a flip side, that flip side being that it will reduce the litigation fees and hence the so called ‘Patent trolls’ would become more than active.
So, in nutshell, we need to argue whether the increase in the trolling nature, which surely is not a promoter or a positive force in most which ways, become a deterrent to a change which promises to make the whole patent filing system more efficient and is a must considering it leads to strengthening of ‘Patent bonds’, if I may use this word, among the EU nations.

As per me, increase in patent trolls won’t be a positive change, but the right way to deal with the situation would be to make the laws more efficient, a concern raised by the 16 countries, rather than stalling a development which holds so much promise and is a must when we look at the bigger picture.

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Lancelot d'Aubreby
I don’t think that the unique patent package will increase the actual number of patent trolls on the market at one condition. First of all, the unified patent package will give in one time the chance to patent trolls to have access to the main European countries. According to the market logic, every company tries to maximize their profit. Thus, it…
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I don’t think that the unique patent package will increase the actual number of patent trolls on the market at one condition.

First of all, the unified patent package will give in one time the chance to patent trolls to have access to the main European countries. According to the market logic, every company tries to maximize their profit. Thus, it is logical that the patent trolls will enter the European market, which will provide them a new source of profits.

However, Europe should, like the USA are planning to do, strengthen its law towards patents by for example reviewing patents after they have been granted and eliminating the ones that are not used or only used to be licensed.

In this case, settling up the unique package will actually even be a good tool to fight against the patent trolls. Indeed, without a unified patent package, it is very hard to eliminate the bad patents as the different cases have to be judged as many times as the patent is present in a European country. On the contrary, with a unique package, the decision is centralized in one court and the patent troll can be eliminated very easily and quickly.

So, if Europe toughs up its patent system, patents trolls can be eliminated as easy as they enter. Without an increase in the severity, I agree with the position defended by the companies that signed the open letter. Also, for the society it would be worse as companies will be obliged to spend a lot of money on juridical costs instead of R&D for example.

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Julien van Cottem
There is a risk of emergence for PAEs here in Europe, but there is a small chance that it will be similar to the US “trolls”. The increased transferability of patents reduces the transaction cost. In one hand, it is good for the diffusion of a technology and the expansion of the related industry (it has been already debated in…
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There is a risk of emergence for PAEs here in Europe, but there is a small chance that it will be similar to the US “trolls”. The increased transferability of patents reduces the transaction cost. In one hand, it is good for the diffusion of a technology and the expansion of the related industry (it has been already debated in the last week topic). In the other hand, the transferability allows the danger associated to a market and like speculators in the finance world, the PAEs can emerge.

As always, the solution is to find the right equilibrium in the legislation. Too specific and too complex, a global patent law will not resolve the expansive transaction cost. And not enough control allows the drift caused by PAEs.
We don’t know yet if the measures taken by the Obama administration in the United States are effective or not. Even though, like they did in their act, it is clearly important to watch over the transparency of such companies and to strengthen the review process of a patent. It is not about forbidding the enforcement of legal rights but avoiding abusive behaviour that happened already in another country.

So, the writers of the open letter are in their rights to be concerned although there is a small chance that patent trolls as the American ones exists one day in Europe. The European market is already wide open and it is unthinkable that big companies do not sell in some countries of the Union. So there is already a way to get all the patents of exploitation in Europe and a unitary patent court can “only” make the access to this package easier. PAEs had already the chance to emerge in Europe.
Moreover, the argument of the different culture of litigation seems pretty valid because trials are not held in Europe as in the US, which is quite obvious.

In my opinion, there is a chance to meet abuses with a united patent law. Such a law should be written very conscientiously. But there is a very little probability that PAE emerge in Europe or if they do, I think they will not cause as much as damage than in the US.

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Lefebvre Jean-Christophe
First, I totally stand against “patent trolls”. The main goal of patent is to protect innovations in order to promote it and motivate companies to think out of the box. In my view, those trolls are innovation drag because small companies that would innovate can’t due to this war of patent generated by portfolio owners. In addition, the legal procedures…
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First, I totally stand against “patent trolls”. The main goal of patent is to protect innovations in order to promote it and motivate companies to think out of the box. In my view, those trolls are innovation drag because small companies that would innovate can’t due to this war of patent generated by portfolio owners. In addition, the legal procedures takes times and money that could be you use for progress.

From my point of view, I would agree with the open letter so I do think that unified patent package will increase the risk of “patent trolls” on the European Market. With this upcoming system the size of the market will grow and the incentive to possess patent portfolio in order to make a business with it will grow to. I agree with the fact that the system and the culture of litigation are different in Europe and the potential profits could be smaller. But there will still be profits and it is an easy way to kill the competition. Thus, given that point, I think that the risk for “patent trolls” remains important.

Therefore, I think that Europe has to struggle against those troll in a preventive way. To begin, we should re-examine conditions for the patent application. Then, even if the patent is given, an institute should follow those patents at least during twenty per cent of the patent time to ensure that the company is not “trolling”. In case of troll, Europe should give tools to accelerate the procedure in order to keep the innovation going. And finally, in case of “patent troll”, the subject of the patent should become public. I think that it could be a way of boosting the innovatin with usefull patent.

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Ankit Gupta
When we talk about Patent trolls, we are talking about the firms which are take chances for more on winning side and less on losing side. While, with new UPC, bigger companies, against which the litigation is going to be held in such cases, are more on losing side and less on winning side. How is that? With current patent…
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When we talk about Patent trolls, we are talking about the firms which are take chances for more on winning side and less on losing side. While, with new UPC, bigger companies, against which the litigation is going to be held in such cases, are more on losing side and less on winning side. How is that?

With current patent system, the number of patents filed in the EU lags far behind other parts of the world. Some 135,000 patents were filed with the European Patents Office in 2009, compared with 459,000 in the U.S., 348,000 in Japan and 315,000 in China.

In an impact assessment of new UPC,
1. The European Commission estimated that the costs of obtaining a patent in all 27 EU countries would drop from over 32,000 euro (mainly due to translation costs) to 6,500 euro (for the combination of an EU, Spanish and Italian patent).
2. The European Commission has calculated that, with the single court, litigation expenses incurred by European companies can be reduced by about 289 million euros a year.

As new UPC has brought down the litigation costs significantly (approx. by 80%), now it will be more of patent filing and less to lose for ‘patent trolls’ and so more of patent litigation by them.
With the new UPC, for bigger companies, if the patent is not valid, the time is lost in the proceedings with the issue of “if the patent has been infringed” without validity being determined or in coming out clean with the whole proceeding. Also, with the fear of unfair litigation, bigger companies would prefer to negotiate and settle with the patent trolls because losing in one country like Germany would impact their business in whole EU.
For bigger companies, It would either be monetary settlement or buying of license of patents – without getting into the ruckus of litigation while a go ahead for ‘patent trolls’.
With the above points, though new UPC is making system efficient, it has also reinforced the risk of ‘patent trolls’. I agree with the open letter signed by the 16 companies. – so there required is the strengthening of patent granting authorities and improvements in UPC to limit the risk of patent trolls – like the one done by US in limiting the litigation in pools against the same patent.

References:
http://en.wikipedia.org/wiki/European_Union_patent

http://www.euractiv.com/innovation-enterprise/european-patent-finally-agreed-news-517945

http://www.bloomberg.com/news/2012-06-29/eu-leaders-reach-agreement-on-eu-patent-system-van-rompuy-says.html

http://googlepolicyeurope.blogspot.be/2013/09/troll-proofing-europes-patent-system.html

http://www.nytimes.com/2013/06/05/business/president-moves-to-curb-patent-suits.html?_

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Jean-Baptiste Ledoyen
As the author said, the risk isn’t immediate seeing that the unitary patent won’t appear before 2017. Nevertheless I think companies should interest them quickly. Without patent trolls, firms were able quite easily to define who were the sectors that used the same technology as them. So it was possible for them to determine which companies might have patent in…
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As the author said, the risk isn’t immediate seeing that the unitary patent won’t appear before 2017. Nevertheless I think companies should interest them quickly. Without patent trolls, firms were able quite easily to define who were the sectors that used the same technology as them. So it was possible for them to determine which companies might have patent in the same area as their technologies. Now with patent trolls, the risk can come from anywhere. Firms will become to be afraid to launch a technical business seeing that a company could come and ask them to pay to use some technologies. The business world will be so uncertain that it will be lead some investors to not enter the market.
This uncertainty is the biggest competitor of any entrepreneur. It costs him a lot! Before patent troll, if a SME (A) copied another SME (B) of another country without knowing it, probabilities that the second SME (B) discovered it were very low. Now (if we assume patent trolls enter the European market) patent trolls are continuously looking for any firms who use their patents so it was more likely to be discovered. In one hand, it’s logical to pay for using something we didn’t discover (that someone else has created by spending money). But in the other hand, if both companies aren’t on the same market, if they don’t compete themselves, the total welfare is maybe higher if the firm A keep going to use it and firm (B) too without compensation. And let’s imagine that firm B discovers that firm A used its technology, firm B will ask firm A to pay a fee for that. However most of the time this fee might be symbolic and in the interest of both firms, the goal of firm B is just to be fairly compensated, not to kill firm A. Now if a patent troll possess this patent, its only goal will be to ask the highest fee as possible, knowing that firm A absolutely need this technology and will be ready to pay a huge price for it.
I think so if Europe maintains its unitary patent, it also has to reinforce rules to avoid patent troll in Europe. One of the laws which might prevent from patent troll is a law obliging firm who wants to suit another one to prove the utility of its claim. That means company should prove the harm caused by the firm who stole it the IP right, and that it can’t require a fee higher than this injury! We will avoid firms who only collect patent for money!!

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Defoy Gilles
The Law is the Law. If somebody uses a legal right, no one can tell him he is in the wrong. But is the Law fair? That’s not the same thing. Indeed, government always took the decisions which seem right to it. But, in this case, this is a technical topic so the authorities are maybe not able to decide…
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The Law is the Law. If somebody uses a legal right, no one can tell him he is in the wrong. But is the Law fair? That’s not the same thing. Indeed, government always took the decisions which seem right to it. But, in this case, this is a technical topic so the authorities are maybe not able to decide what’s good for the society. Who can blame it? Even specialists have opposite points of view. As this topic is related to large amount of money, it will be – as often in the European Parliament – a fight between lobbies from both sides.

I think that those Non-Practicing Entities are totally wrong. Indeed, to make money, entities have to bring or to create something. Even intermediary firms which are sometimes useless provide a service or improve the product. But in this case, the NPE don’t do anything: they only make money through legal actions. Being aware about new technologies and using this information could be considerate as an asset and any assets deserve returns. But I find this method not as different as an insider dealing. Yet, this kind of action is determined as illegal.

Concerning the risk of patent trolls bringing by the unified patent package, I think it’s a serious one. First because, as mentioned in the article, those court actions are real economic problems for all kind of business. Indeed, small as start-ups already struggled with it in the US and big firms fear it according to the open letter’s signatories. Second and mainly because I don’t agree with the argument that a whole Europe injunction was already possible through a German injunction. Indeed, Europe is large enough to do business and be profitable without the German market. Now, with this unified patent package, the whole Europe could be paralyzed. That means a lot of money being hijacked by creative less businessmen.

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Senterre Quentin
Firstly, I would here offer some constructive criticism about how the increasing activities of non-practicing entities affect innovation and competition and how their coming in Europe could be dangerous for us. I will concentrate on the PAEs activity (Patent Assertion Entity activity) and not the more general non-practicing entity (which acronym is NPE). The reason of this choice is due…
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Firstly, I would here offer some constructive criticism about how the increasing activities of non-practicing entities affect innovation and competition and how their coming in Europe could be dangerous for us.

I will concentrate on the PAEs activity (Patent Assertion Entity activity) and not the more general non-practicing entity (which acronym is NPE). The reason of this choice is due to the fact that NPE includes for example researches that universities patents in order to work with companies and improves products, which help the diffusion of innovation and allow us to progress in my opinion.

Compared to the NPE, PAEs make money by licensing the intellectual property to manufacturers who are already using the patented technology. From my point of view, PAEs activity can be compared to a slot machine used by large companies in order to slow down their competitors by suing and keeping them in court rather than in their business.

In my opinion, Patent trolls are like speed cameras on the road. They do really have a reason to be used and are legitimate. But we see a lot of speed cameras on the road those days and not especially in the most dangerous areas in order to make always more money.

The same situation is observable with Patent trolls in the U.S.A. . As we can read in the open letter: “in the United States, the abuse of dubious patents is having the opposite effect, impeding innovation and harming consumers. Patent trolls – litigation shops that use questionable patents to extort money from productive companies—are placing a huge drag on innovation. Trolls use the threat of expensive and extended litigation to extract settlements, regardless of the merits of their claims. The economic impact of patent troll litigation has been enormous, draining an estimated $29 billion in direct costs from productive enterprises in 2011 alone. Over the years Google has faced down hundreds of patent claims, mostly from patent trolls, but only after paying millions of dollars in legal fees.“

Secondly, another evidence was given at the workshop of the US Federal Trade Commission by JON LEIBOWITZ : “It is clear that PAE activity is a growing issue in the United States. There were more than 4,000 patent lawsuits filed last year. James Bessen and Michael Meurer (…) calculate that no more than 25% of this flowed back to innovation. 75%, they claim, is dead weight loss. (…) Five years ago 22% of all patent cases were filed by so-called patent monetizers. In the most recent year, this number increased by almost 40%. Now most of these cases settled before summary judgment, but of the five entities in the sample who filed the greatest number of lawsuits in the period studied, four were patent monetizers. The study also found that universities accounted for 0.2% of the cases in this sample.That means of all the patent litigation occurring, PAEs bring almost 40% of these cases. And they settle, generally, before determination on the merits. And it makes you really wonder whether we are witnessing a developing sort of combination of a plaintiff attorneys, and a new surge of patent rights that may very well drive us off a patent cliff. Another recent study found that when PAE suits proceed to merit judgment, PAEs lose 92% of the time. And that, to my mind, is just astonishing. Now, even if you’re not bowled over by these statistics, it is clear that the time has come to think very, very seriously about PAE activity and its consequences on society. What is to be done? That’s a harder question.”

Finally, It is clear that Patent trolls begin to be recognized as a real problem in the U.S. . I think that we should learn from the errors of our neighbors and that we should not let them come into Europe. Moreover, our legal system is already paralyzed by never-ending lawsuits so I recommend to stop Patent trolls at the European frontiers before opening up a Pandora’s box.

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Frédéric Anaëlle
In the USA, « patent trolls » are the primary source of lawsuits related to patents. According to a report from the White House, these « Non Practising Entities » costed $ 29 billion to U.S. economy in 2011. Why are there fewer « patent trolls » in Europe ? One reason could be that unlike Europe, the United States…
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In the USA, « patent trolls » are the primary source of lawsuits related to patents. According to a report from the White House, these « Non Practising Entities » costed $ 29 billion to U.S. economy in 2011. Why are there fewer « patent trolls » in Europe ? One reason could be that unlike Europe, the United States allow patenting of software, which has become the main source of trial by « trolls ».

Like Mr Alain Strowel said in its article, with the Unified Patent Court agreement, it will be possible « to obtain a legal injunction valid on a large market ». Thereby, I think that this system could be used to resolve disputes relating to the validity and infringement of proposed new unitary patents. Moreover, companies could protect their monopoly over their inventions across those EU member states that sign up to the scheme by filing a single patent at the European Patent Office (EPO). Another advantage of the UPC is that it will be cheaper for companies to file patents in the EU.

Neverthless, I agree that the number of « patent trolls » in Europe will probably increase with this agreement because it will be easier for them to take advantage of market’s inefficiencies. That’s why, in my opinion, companies that signed the open letter were right. They don’t want to take the risk that these « Non Practicing Entity » blackmail them and it’s fully justified.

I sincerely believe that we have to do our best to protect our economy against « patent trolls » because they don’t create any innovation and they don’t add new value on the market. However, they can earn a lot of money thanks to their patents. If we let them, it will discourage other firms to innovate.

In conclusion, I think that the Unified Patent Court has a lot of advantages but we have to keep in mind that it can have some consequences too. I consider that we have to revise the patent law to make sure that the number of « patent trolls » will not increase. One solution would be to ascertain that patents are not deliver to easily.

Sources :
(1) Des entreprises s’alarment de l’arrivée de “patent trolls” en Europe, http://www.lemonde.fr/technologies/article/2013/09/26/des-entreprises-s-alarment-de-l-arrivee-de-patent-trolls-en-europe_3485720_651865.html
(2) http://blogs.technet.com/b/microsoft_on_the_issues/archive/2013/09/25/microsoft-announces-industry-coalition-on-european-patent-system.aspx
(3) http://www.out-law.com/en/articles/2013/september/-eus-unified-patent-court-could-be-vulnerable-to-patent-trolls-tech-companies-warn/

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Benjamin Sommeville
In my opinion, the future unitary patent and unified patent court might encourage “trolls” to come in Europe as many arguments are demonstrate in this article. The risk is not negligible but I don’t think that it will happen because the damages that are awarded at the end are much lower in Europe than in USA. Moreover, the potential risks…
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In my opinion, the future unitary patent and unified patent court might encourage “trolls” to come in Europe as many arguments are demonstrate in this article. The risk is not negligible but I don’t think that it will happen because the damages that are awarded at the end are much lower in Europe than in USA. Moreover, the potential risks of this system are already present on the key market for Europe (example of German market).

I totally agree with the paradox mentioned in the article: “Many observers disapprove the actions of those entities because they assimilate their business model to judicial ‘blackmail’. But can we talk of blackmail when one does nothing but enforce a legal right that one owns? When is a legal action abusive? Couldn’t it be that the problem is just that the patent shouldn’t have been granted in the first place?” Indeed, I find very surrealistic that companies and observers disapprove the abuse procedures of non-practising entities even if this actions are legal.

Moreover, I disapprove too this kind of actions and I understand the open letter signed by US and European companies. NPE threat the incentives to innovate. It’s clear that the abuse of the patent system is stifling innovation and putting a drag on our economy. In my opinion, Governments and the judicial system should have the control over the distribution of patents and licenses in order to avoid this but they are tricked by this “parasites”.

However, I would just say that this new official texts have also positive aspects. It will simplify the validation procedure and will make more transparent the requirements of translation. Furthermore, the unification will greatly reduce the cost of European companies.

Finally, to talk about the future situation in Europe, I think that maybe a few will try in Europe but there won’t be a big trend like in USA. I just hope that by more adequate law and by taking into account the mistakes made by the USA, Europe could better protect itself against these parasites. EU Government have not to do this to protect big companies, but to protect innovation and research and development for new product.

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Haterte Alexandre
There are multiple things to consider: Firstly, it is true that UPC would make the gain of a legal injonction easier and broader, but it would also be easier for companies to defend their product in front of a single court rather than in 13 different procedures. Although potential losses may be high, it still allows to put the time and…
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There are multiple things to consider:
Firstly, it is true that UPC would make the gain of a legal injonction easier and broader, but it would also be easier for companies to defend their product in front of a single court rather than in 13 different procedures. Although potential losses may be high, it still allows to put the time and ressources spared by this unified procedure in R&D.
Secondly, the risks for the UPC depends of the way the legal procedure itself is designed. For example, in united states, cases are not only judged by a popular jury but are also ruled by “oral principle”, meaning that testimonies are more important than written evidences, which can only be submitted if validated by an expert, and where complicated proof are explained by “experts”. The resuls is that the decision of the jury depends more on an oral brawl rather than another thing. In europe, Jury are professionnal but we also have a principle called “primauté de l’écrit”, where written proofs are considered more important than testimonies. This makes it much more difficult for patent troll to win a case than in Europe.
In summary, I think that the question resides not in as to usify or not but more in how to do it? How will the patent be granted and if this procedure prevent patent trolling, and how the cases will be ruled: speed of the procedures, burden of proof, So, as it was said in the article “Bifurcation of European patent litigation: a practitioners’ perspective”, to say wether or not we are for the UPC, we have to wait to see if we can be confident about the quality of the decisions of the UPC and how well the UPC system is working

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Clarisse Werbrouck
As I see it, a unified patent package in the European Union is completely frivolous: indeed, ilt will only encourage patent trolls to come to the EU which is not something that will stimulate innovation but rather block it. The behaviors of such individuals/companies have huge impacts on the society as well with the huge legal costs it causes. Since…
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As I see it, a unified patent package in the European Union is completely frivolous: indeed, ilt will only encourage patent trolls to come to the EU which is not something that will stimulate innovation but rather block it. The behaviors of such individuals/companies have huge impacts on the society as well with the huge legal costs it causes. Since the EU countries have a system that is less favorable for patent trolls (professional judges and lower penalties), we have been less attractive to them. By putting a unified patent system, we encourage patent trolls to come to us, which would be really negative from a society point of view.

Of course, instead of taking the society as a whole, we can have a look at the companies that are present in the EU countries. Their fear is completely understandable: up until now, the market they were on was kind of privileged since patent trolls had less incentives to come disturb the patent system. In case of a unified system, they will face high distortions that will impact big firms and SME even more. The only possible advantage that companies could benefit from is that their patents could cover a much broader geographical zone and thus market which thus involves way less costs in terms of patent filing. However, if the real objective of a patent is to protect companies and individuals from other companies stealing their new knowledge, patents should only be applied to specific markets/countries in which the patent holder is active. If companies operate on at an international level, they just have to file a patent in the concerned countries. By applying the patent directly to an international market, the company will acquire legal right in markets that don’t really have impacts on them, which is ridiculous. This would actually encourage companies to act as Patent Assertion Entities which only want to sue people to make profits even if the patent infringement doesn’t really impact them.

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De Kock Boris
First, we must keep in mind that patents are necessary to protect innovation. And the unitary patent respond’s to a need of efficiency, it should reduce the cost and complexity of patent deposit within the EU. The unitary patent isn’t a problem but a solution. The problem is the possibility for some firms to abuse of the system like in…
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First, we must keep in mind that patents are necessary to protect innovation. And the unitary patent respond’s to a need of efficiency, it should reduce the cost and complexity of patent deposit within the EU. The unitary patent isn’t a problem but a solution. The problem is the possibility for some firms to abuse of the system like in the USA but the European situation is not quite the same. The European Courts are less favorable to patent and more specialized, moreover it isn’t possible to issue patent on software that are the main source of lawsuits by troll in the USA.

We have to learn on what has been done in the United States to combat the trolls. It is transparency measure, but also to charge legal fees to the complainant if he loses. This could be a strong deterrent given the costs of defense in Europe. We could also look towards governance rules and soft law to avoid malicious prosecution.

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nsiangani Tatiana
Patent trolls bring more drawbacks than benefit on innovation. Remember through the aim of patent is to to protect and promote innovation, to ensure business investing time and effort into developing technology in order to commercialise it without competion from firms that haven’t made the same commitment. As mentionned in the report published by the White house concerning PATENT ASSERTION AND U.S.…
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Patent trolls bring more drawbacks than benefit on innovation.
Remember through the aim of patent is to to protect and promote innovation, to ensure business investing time and effort into developing technology in order to commercialise it without competion from firms that haven’t made the same commitment.
As mentionned in the report published by the White house concerning PATENT ASSERTION AND U.S. INNOVATION, patent trolls have such troubling implications for America’s economy. According to the report,in 2011, alleged infringers paid patent trolls $29 billion, money these enterprises could have invested in innovation and job creation, for an estimated loss of wealth of $300 billion over the previous four years.

As regards competitiveness, european market is already in bad shape.
Let’s hope that the unitary patent will keep its promise and will be able to really simplify the grant of patents and thus improve protection of the innovation in the EU, in particular by permitinf firms to avoid long and expensive procedure in the event of patent litigation . Because, without these administrative and financial obstacles, companies and particularly small ones will more easily oppose patent trolls. The european unitary patent will thus have the virtue to protect more easily and with lower costs inventions on a european scale.
By encouraging firms to innovate, it could become in the long run a tool of support for competitiveness to face up to international competition.
Sources:
Are patent trolls strangling sustainable innovation?
http://www.theguardian.com/sustainable-business/patent-trolls-sustainable-innovation
Patent trolls spell trouble for America’s economy
http://blogs.reuters.com/great-debate/2013/11/18/patent-trolls-spell-trouble-for-americas-economy/
Executive Office of the President (June 2013).PATENT ASSERTION AND U.S. INNOVATION

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Shashank Rai Goel
EU's move towards a unified patent regime definitely promises to promote greater efficiency and long term competitiveness. It also promises to lower the cost of inventing a new product and thus promote innovation in general. However, companies are somewhat justified in being vary of the new regime, as it has the potential to open up a market for 'Patent Trolls'. As…
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EU’s move towards a unified patent regime definitely promises to promote greater efficiency and long term competitiveness. It also promises to lower the cost of inventing a new product and thus promote innovation in general. However, companies are somewhat justified in being vary of the new regime, as it has the potential to open up a market for ‘Patent Trolls’.

As I understand, the companies have two major concerns. First, that the new code is heavily influenced by the German system whereby it is possible to get an injunction while the validity of the patent is still being debated. However, I believe this threat is not as large because under the proposed law, the preliminary hearing will include both validity and injunction arguments and it very unlikely that the judge decides that his court is not qualified enough to give judgement on one issue and not the other. Thus in most scenarios the validity and injunction arguments will be tried in the same court under the same rules, hence eliminating the threat of an injunction being granted in an ‘easier’ court.

Second, the companies are concerned about the possible leverage that the trolls might gain, hence making this a lucrative market. However, it is worth pointing out that the proposed system is most likely to follow the English system of allocating legal costs whereby the loser has to bear the legal cost for both parties. This, in my opinion, will greatly reduce the ‘trolling’ of patents as PAEs will also be forced to think about the legal cost of fighting a frivolous case.

Overall, I believe the proposed code promises to be very beneficial for Europe. The risk of PAEs entering the market does exist but I think that risk is too low when compared to the benefits

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Yasuhiro Minami
I think that “patent trolls” ’s impact will become large after Europe adopt the unified patent system. I am not sure. Because both of the view point have reasonable base, I think. But I think high litigation fee prevents company from fighting in the court and patent troll get incentive to fight in order to get money. I have some…
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I think that “patent trolls” ’s impact will become large after Europe adopt the unified patent system. I am not sure. Because both of the view point have reasonable base, I think. But I think high litigation fee prevents company from fighting in the court and patent troll get incentive to fight in order to get money. I have some reasons for this.

First, I think that the characteristic of “patent troll” is important. I think that “patent troll” has the risk by which “patent troll” lose money in order to get much money. So, “patent troll” has no fear for the losing money by the new system. I think the strict law could not be the deterrent.

Second, “Unified” is means that the diversity of the system is lost. If the “patent troll” find the way to avoid a wall of the system, the damage is easy to spread. Conversely if the system could defend from “patent troll” perfectly at once, the problems were vanished. But I think there is little possible. So, I think the losing of diversity make less the possibility of defending the patent.

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Marie Khamphanh
In September 2013, the European Union designed a patent system that will be implemented in January 2014. It will help protecting IP rights with the possibility of denouncing patent litigation all around Europe. However, it will reinforce the power of patent trolls which are companies that purchase patents rights with the unique intention of suing firms such as high tech…
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In September 2013, the European Union designed a patent system that will be implemented in January 2014. It will help protecting IP rights with the possibility of denouncing patent litigation all around Europe. However, it will reinforce the power of patent trolls which are companies that purchase patents rights with the unique intention of suing firms such as high tech companies for alleged infringement. Different courts will also be permitted to decide on the validity of a patent and then on its potential infringement. It will provoke a massive products ban (smartphones, tablets, etc) before any decision of whether the patent is actually valid. Then, the rigid application of this injunction decision can allow litigants to blackmail producers by requesting huge royalties. That’s why 14 companies published an open letter to denounce this decision (Apple, Google, Samsung, Microsoft, Cisco, HP, Yahoo, Intel , Blackberry). I agree with the position defended by the companies that signed this document.

Indeed, to me, patent trolls constitute a major hazard in the patent market. They shouldn’t intervene in this market because they don’t manufacture products as their business model is based on suing other companies. In other words, they are making profit on the back of other companies which is unethical. The pan European patent system will encourage the creation of this type of companies. This phenomenon is visible in Germany where new patent trolls companies emerge thanks to cheaper legal fees, speedier action and fragmented processes. Europe should not become a patent battle court like in the USA. A study made by a professor of the Boston University showed that in the US, in 2011, 2.150 companies were forced to mount 5.842 defenses in lawsuits, costing approximately $29 billion. It will also encourage the creation of privateers. They are patent trolls which work for a company and have on its disposal its patent portfolio. They aim at suing the operating company’s competitors in order to destabilize them and dissuade them from entering in the market. Furthermore, they are also a hindrance to innovation. In general, small companies such as start-up can be afraid of launching a product that uses other innovation and losing money because of patent trolls lawsuits. To me, this measure will harm more the small firms than the big ones as they can’t afford an efficient legal service to be in charge of dealing with patent trolls’ issues.

In conclusion, the European Union should revise its patent system .

References
http://www.forbes.com/sites/timworstall/2013/09/26/how-to-beat-the-patent-trolls-european-union-style/
http://bits.blogs.nytimes.com/2013/09/26/daily-report-tech-industry-warns-europe-of-concerns-on-patent-trolls/?_r=0
http://www.pcworld.com/article/2049520/patent-trolls-will-gain-from-a-single-european-system-vendors-warn.html
http://www.cnbc.com/id/101065336

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Delinte Jérémy
In my opinion, I don’t agree with the position defended by companies that signed the open letter. Although risks of ‘patent trolls’ could appear in Europe like in US, we should keep in mind that we are dealing with a different environment. Indeed, mostly of US patent litigations concern software patents because boundaries of software patents are broad. “Software is…
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In my opinion, I don’t agree with the position defended by companies that signed the open letter. Although risks of ‘patent trolls’ could appear in Europe like in US, we should keep in mind that we are dealing with a different environment. Indeed, mostly of US patent litigations concern software patents because boundaries of software patents are broad. “Software is a technology that represents broad classes of interactions abstractly” and it is so difficult to use software as reference to check if a patent effectively infringes or not another patent. This is in contrast of mechanical devices with which we can read its working models.
Comparing to US, in Europe “Inventions that use computer programs to provide a business process – not a technical process – are not patentable”. This difference between US and EU can play a significant role in patent litigations.

Moreover, as the president of the EPO (European Patent Office) – Benoît Battistelli – explained, litigation rate in Europe is traditionally lower than in other regions and especially in the US.

Finally, I don’t think that the unified patent system will lead to a significant amount of patent litigations due to ‘patent trolls’ like in US. I believe that the EPO takes in account problems meet by US about patent trolls.

References:

http://blog.epo.org/the-epo/us-feedback-on-recent-developments-in-the-european-patent-system/

https://www.ipdigit.eu/2013/10/fixing-the-software-patent-problem/

http://www.washingtonpost.com/blogs/the-switch/wp/2013/09/03/the-patent-troll-crisis-is-really-a-software-patent-crisis/

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Bertrand RIbonnet
Taking into account the arguments going in one sense or the other, I think that this unified patent system would not be an incentive for patent trolls to enter the market. This claim is based on several reflexions. First, I think that patent trolls would take more risks by acquiring patents portfolios that offer protection all around Europe. Indeed, by broadening…
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Taking into account the arguments going in one sense or the other, I think that this unified patent system would not be an incentive for patent trolls to enter the market. This claim is based on several reflexions.

First, I think that patent trolls would take more risks by acquiring patents portfolios that offer protection all around Europe. Indeed, by broadening the protection, the cost of acquisition of these patents must be higher. Moreover, the infringement of the patents is a totally probabilistic event: it is impossible to know whether or not another company will violate the associated rights. So, even if the revenues are expected to be higher (because the violation is geographically more important), the initial investment could become too large for only expected revenues.

Moreover, the cost of legal defense can be very high in Europe and cases are examined by professional judges. As a consequence, big firms enjoying significant resources could put pressure on patent trolls by threatening them not to accept the license and to go to court. It would be very costly for patent trolls and the deep understanding of the patent troll’s activities by professional judges could tilt the balance in favour of the firm developing the product and contributing to the country’s GDP.

Finally, on the side of the companies developing the R&D activities, they can afford loosing the market of one country but the issue is much more crucial if all the European market is concerned. Given the huge investments needed to market the products, we can reasonably assume that the firms will pay a closer attention not to violate someone else’s patent, decreasing potential revenues of patent trolls.

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XIEWEN YU
I disagree that the legal defense of the patent troll behavior and companies should sigh on the open letter to improve the innovation effectively and legally. It seems like both arguments are worried about the European markets being attacked by the patent roll , however, from my point of view, European countries do not need to design special patent…
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I disagree that the legal defense of the patent troll behavior and companies should sigh on the open letter to improve the innovation effectively and legally. It seems like both arguments are worried about the European markets being attacked by the patent roll , however, from my point of view, European countries do not need to design special patent protection court system because the natural law conditions can protect businesses now by one body of a strong and effective law.

Firstly, European countries can get useful information from the existing US system. By adopting the suitable part of the US system and adjusting the improper part of the system, European countries can add these to the existing law system. Therefore, they can create an effective and useful way to from a practical and valid system in a short period . Secondly, what makes US system so difficult is that there are different laws and different evident and procedure standards in the different places so people can and do go forum shopping. The courts will all operate on the English system of allocating legal costs, not the American one. This is something that, at a stroke, makes real patent trolling something deeply unprofitable.Finally, in European courts, the loser must always pay everyone’s legal costs. So, spraying out writs in the hope of getting certain amount pay off from people who wish to avoid the many more thousands to many millions costs of actually defending the action doesn’t work. Under this sort of system of allocating fees the semi-random shakedown attempts that I’m defining as true patent trolling simply will never get started. The risks are too great that you’ll get hit with a massive legal bill if you try it.

Under European law system, people can still get access to the patent and patent troll can be a legal behavior in the law. However, people who think they can make money from certain behaviors may get nothing in the end. Since the patent trolling is a unprofitable activity, no one will try to make profits from this acclivity.

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Georges Cyprien
First, I'd like to insist on the fact that the Union Members are more than likely aware of this potential issue. This problem exists in the US, so they must know that it can happen if we unify the patent law in Europe. However, "patent trolls" remains a phenomenon which is quite hard to assess in terms of loss for…
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First, I’d like to insist on the fact that the Union Members are more than likely aware of this potential issue. This problem exists in the US, so they must know that it can happen if we unify the patent law in Europe.
However, “patent trolls” remains a phenomenon which is quite hard to assess in terms of loss for the society. On the one hand, they encourage innovation by doing researches that would probably not happen if they didn’t exist, but on the other hand they only use these research to sue the companies that “infringe” these “sleeping patents”. I have to say I fully agree with President Obama when he’s saying that these companies are not producing anything at the end of the day, thus we must act to reduce the emergence of such companies.
But, it remains very difficult to assess the effect ot a unitary system in Europe, since we don’t know if this will attract as much patent trolls as in the US, since there’s quite much less profit to do (even though it can be large) and also because the law is very different, and we have different ways to approach the patent infringement.
I think it is very important to fight these patent trolls, because they clearly are a source of uneffiency, since their business comes from lawsuits. And I don’t think they really stimulate innovation, since they would also reduce the incentives for firms to innovate! In fact, if you know that your innovation might be patented by a sleeping patent, you would fear to waste your money in R&D, and hence you wouldn’t invest in innovation as you would have without these trolls.
Also, I think these trolls are abusing of the law. Of course, they own these patents, and they should have the right to sue companies who use their technologies. But it is a very narrow view ot the reality. Law should make sense. If those firms only patent technologies in order to sue other companies, then where’s the economic legitimity, since these companies are not even trying to consciously “steal” someone else’s idea, but end up being sued by companies which do not even consider using their technology, which is clearly a waste for social welfare?

Anyway, we must also consider the other perks of unifying the patent law in Europe, because there must be some, otherwise we wouldn’t even be considering to do it. Then we would have to check if the potential gains outweight (or not) the likely loss from unifying our system.

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Depreter
For all the firms which are reliable, which play with the rule in order to protect their patents and to promote the innovation, the economic growth etc., I agree, the new unified patent is a brilliant realization from the European Union. Indeed, it will be easier for them to protect their patents and prosecute firms which copy them. But as the…
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For all the firms which are reliable, which play with the rule in order to protect their patents and to promote the innovation, the economic growth etc., I agree, the new unified patent is a brilliant realization from the European Union. Indeed, it will be easier for them to protect their patents and prosecute firms which copy them.

But as the article point out, there is the inconvenient of the “Patent Troll”. As Obama said, “they (Patent troll) do not actually produce anything themselves! “. I see them like parasites for the society because they annoy the others firms which really produce and finals consumers because they are useless! They are just like “money-gap” that firms have to pay to carry on using the product patented, owned by those “Patent Troll”. Awfully the firms that are targeted and threated by Patents trolls lose a lot of money but also a lot of time and efforts. But these three things (effort, time and money) are wasted for some unproductive issues while they could be spent into R&D and innovation which is more worthwhile for the whole society, firms and producers including!

Should the European Union cancel this new achievement? I don’t think that it is the best way because there will be collateral damage on the honest firms for which this measure is necessary. It would be better to find other way to discourage Patent troll to act on the European market. For example the European Union can decrease the costs of legal defense, what can be seen as an incentive to stop negotiating with Patents Troll, so that they won’t be paid and will stop operating on the European market. Another idea is to force the patent buyers (potentially Patent trolls) to show that the patent they are going to buy would be purchased for innovative purposes, and that they do not rely on them as a mean of pressure or easy way to make money.

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Mariame Ammour
The aim role of a patent is to promote innovation and protect the author of an idea. To get ahead we have to do what we can do to innovate and develop technology. The problem of patent troll is that it's a well-constructed concept; it's a good idea but abuses are easy and consequences are not negligible. Personally I don’t think…
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The aim role of a patent is to promote innovation and protect the author of an idea. To get ahead we have to do what we can do to innovate and develop technology.
The problem of patent troll is that it’s a well-constructed concept; it’s a good idea but abuses are easy and consequences are not negligible. Personally I don’t think that patent trolls are something completely bad.

In one hand they are interesting because they provide liquidity to the IT market. In addition, there are some inventors who don’t have the capital/resources to realize the second step, so they patented the idea. These people have to look for another way to cash out. Nevertheless there are abuses, but they are in their right to do what they do because the law allows it. Moreover the owner of the patent has to be sure that the patent has a value. Because, I suppose, that it could take years between the day of the validation of the patent and the day where it is sold or the introduction of a law suit. So there are maintains cost that we have to take into account.

In the other hand there is a huge problem because patent trolls don’t really create value in the case of the abuse. In fact it only stops the process of innovation at the first step. However we can say that by blocking the idea, it obliges companies to develop others ideas to avoid to pay high cost or lawsuit, in the other case, and to stay competitive and it’s a good thing.

I think that the bad side of patent trolls can be reduced by more control if we strengthen the patent law, so we can only validate potential add-valued patents, for example. Another possibility to explore is to limit NPEs (Non-Practicing Entities) because they generate social loss by threating the firm using their technology to intent a lawsuit or it has to pay a high cost.

Finally, regarding the unitary patent I think it’s something good because it will allow to small companies to keep easily informed. I also read that it will reduce the cost of patenting (1).
I think that the empowerment of patent trolls by the unitary patent is a justified worry because unifying the patent will give to NPEs a wider territory to play. So it’s possible to see appear patent trolls on the European market.

(1) http://ec.europa.eu/news/business/110415_en.htm

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Ludovic Verbeke
Obviously the unification of the patent system will encourage patent troll landing in Europe. But there are, I think, cultural reasons which will avoid an explosion of patent troll in Europe. The UPC will decrease the cost of obtaining patent protection and thus, in that case, will increase the competition between the different firms. But it also creates opportunities in…
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Obviously the unification of the patent system will encourage patent troll landing in Europe. But there are, I think, cultural reasons which will avoid an explosion of patent troll in Europe. The UPC will decrease the cost of obtaining patent protection and thus, in that case, will increase the competition between the different firms. But it also creates opportunities in order to abuse of its position. Moreover big companies want to prevent it and decided to do something and we know that lobbying is powerful.

I do not want to resume the several points mentioned in the open letter but I would rather explain why in Europe the threat of patent troll is not so significant.

First of all, in America, the society is more litigious. As Guillaume d’Oreye said, in Europe, a company cannot expect to sue someone of billions dollars. Thus it is clearly showed that the gain in America is hugest than in Europe.
Secondly, the nature of competition is also different. In Europe, there is more cooperation between each firms rather in US.
Moreover the administrative proceedings are more effective. As you said in the interview 60% of cases are judged by a jury. Well, this is not the case in Europe and it allows to keep patent trolls at distance.

To conclude I hope that the legislation will pay attention on this issue because I am convinced that patent trolls are not good for our society. They abuse of the patent system and do not improve innovation.

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Valerio Serse
In my opinion, the fears of the 16 companies that the unified patent package will attract “patent trolls” in Europe aren't all justified. EU have the advantage of looking at the US patent system and thus to improve the project of a Unified Patent Court with some procedures that would prevent from an excess of patent litigation. First of all,…
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In my opinion, the fears of the 16 companies that the unified patent package will attract “patent trolls” in Europe aren’t all justified. EU have the advantage of looking at the US patent system and thus to improve the project of a Unified Patent Court with some procedures that would prevent from an excess of patent litigation.

First of all, I don’t agree with the position taken by the companies about the fact that bifurcation would make it easier for an NPE to enter in the European market. The companies are afraid that UE is adopting a German model where validity of patents and proceedings for infringement are deal in two separate courts, thus a “patent troll” could win a proceeding for infringement while the validity of the patent is still not recognize. However, even if this happens in US could not be the case in Europe. As pointed out by Kevin Mooney, a lawyer involved in this project of reform, in UE will be much more difficult that this happen because in the first six months of the proceeding validity and infringement are deal together by the judges. This procedure can be really helpful to solve the bifurcation problem thanks to the exchange of information between judges, thus companies involved in the proceeding will have much more reliability on the fairness of the judgment.

Furthermore, there will be a big difference in the costs faced by losers of the proceedings between US and UE. In the US patent system each party involved in a lawsuit pays its own fees, while in UE won’t be like that. In fact, Art. 69 of the UPC agreement specified that the losing party will have to pay the entire legal costs of the lawsuit. Here the difference with the US system is a crucial point against an excess of patent litigation because the financial risk for an NPE would be very high. If NPE are charged of the entire attorney fees it wouldn’t be always rational for them to enter in a lawsuit while in the US they would enter in a lawsuit anyway. Moreover, this procedure could lead to less standardization of practices used by NPE legal offices because costs of attorney won’t be somehow fixed anymore but it will be more uncertain.

In conclusion, I believe that the Unified Patent Court in Europe have many difference from the US system and this means that the 16 companies that signed the open letter shouldn’t be so much worried about the new UE patent system. However, is it also true that if this improves from the US patent system are not well implemented the risk that UE will be the next target of “patent trolls” is much more believable.

http://register.consilium.europa.eu/pdf/en/12/st16/st16351.en12.pdf
http://venturebeat.com/2013/09/27/samsung-google-apple-and-msft-warn-eu-officials-about-patent-trolls/

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Taelemans Charles-Edouard
I do believe that the unified patent package will reinforce the risk of patent trolls in Europe. Indeed if you are a firm that holds a patent portfolio ( of blocking or sleeping patents) then you surely have an incentive to blackmail another firm that could be interested in one of your patent or sue it because it …
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I do believe that the unified patent package will reinforce the risk of patent trolls in Europe.
Indeed if you are a firm that holds a patent portfolio ( of blocking or sleeping patents) then you surely have an incentive to blackmail another firm that could be interested in one of your patent or sue it because it already use your patented technology without your permission.
This incentive is certain because it will give to the firm an almost insured amount of money without having much to do.

Plus , if we are now in a new unified European patent system it means that the scope of actions of those firms is bigger.
So they will do those kind of actions with more ease and also with the support the law.
I’m not saying that we must erase all these “trolls” because I also agree with the point that they are boosting innovation with their research.

However I also agree with the point of view of president Obama who was saying that :”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”. Because of that, I think that Europe will have to find a compromise between those point of view and enforce the regulation about the patent troll case.

This is why I agree with the position of the 16 countries that signed the “open letter”
that we must now adopt rules that will limit the risk of “trolls” in Europe.

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Rachit Khare
I believe the companies are correct in expressing their apprehension about the new Unified Patent Court (UPC). The two main aspects about UPC which is drawing major criticism from the companies are Bifurcation and Injunction. I would like to talk about both these aspects of UPC and highlight the concerns and at the same time benefits that they entail to…
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I believe the companies are correct in expressing their apprehension about the new Unified Patent Court (UPC). The two main aspects about UPC which is drawing major criticism from the companies are Bifurcation and Injunction. I would like to talk about both these aspects of UPC and highlight the concerns and at the same time benefits that they entail to the industry as a whole (which I see that the companies which have written the open letter are overlooking).
1. Bifurcation: The main issue with bifurcation is with the treatment of two parts of the patent infringement litigation – ascertaining the validity of patent and whether there has been any infringement. To speed up the legal proceedings, under new UPC, these two aspects can be tried in different courts simultaneously. The companies are arguing that they should be tried together with infringement being discussed only when validity of the patent have been ascertained. Here, is my view on this aspect –
Pros: This can speed up the legal proceedings. In fact, this may help the cases which deal with the real acts of patent infringement. The companies such as Apple, ARM, Cisco which have undersigned the letter can actually benefit from this aspect especially, when they are the one who are filing the infringement case for their patents. And these infringements cases are worth millions and billions to the companies as clearly evident from the recent cases of Samsung, Apple and some other companies in electronics industry. I believe these cases far outweigh, at least in monetary terms, the litigation cases concerning ‘patent trolls’.
Cons: As, mentioned in the open letter this may result in companies loosing huge amounts of money in legal proceedings even if the patent is not valid. This would result in companies trying to avoid the litigation by granting royalties to PAEs which they are not worthy of.
2. Injunctions: Companies’ argument against this aspect in their open letter is under the new UPC, the injunction power will extend beyond a single country to most of Europe, and it could be used with the intended effect of impeding product sales across the region.
Pros: After, the birth of European Union, Europe is now seen by many companies as a single market just like markets of US, Japan and China. Under UPC, the patent holders will be protected in all the countries of the European Union. Thus, they won’t have to register their patents in each and every country where they are doing business which will save significant amount of both time and money. This should actually be the way forward for the innovation industry where in the innovator just has to register its patent in one country, say US and is protected in different regions across the world.
Cons: The sales of the companies who are victims of the litigation by these ‘patent trolls’ will be impeded across whole Europe, at least, till the legal proceedings are going on. This will magnify their losses as compared to the ones which they would have incurred prior to UPC.
After looking at the pros and cons of these two aspects of UPC, I conclude that the intention behind UPC is true and rightly placed. It will help the patent holders who are victim of illegal patent infringement. But at the same time there are certain loop holes which can be exploited by PAE and reap benefits from this regime. I believe a solution to this issue can be through strengthening the patent granting authorities. The patent authorities can be further equipped with systems where they can validate the authenticity of the patents. UPC can include a clause that it will consider only those cases where the patent in question has been validated by the concerned authority. So, the problem of invalid patent litigations which companies have been vehemently expressing will go way. I believe there can be many more such improvements that can be brought about in UPC. With improved and stronger UPC, industry can actually be enjoy the its benefits.

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Guillaume d'Oreye
The unification of the patent system is surely something that could encourage patent troll to settle in Europe as many arguments go in this direction. But i don't think it will really happen as the potential gain is less than in america and that the legislation will become less accomodative in the future for them. To become a patent troll you…
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The unification of the patent system is surely something that could encourage patent troll to settle in Europe as many arguments go in this direction. But i don’t think it will really happen as the potential gain is less than in america and that the legislation will become less accomodative in the future for them.

To become a patent troll you need a lot of money as you have to pay for patent porfolios valid in europe, the creation of the company in europe and the lawsuits if someone breaks your intellectual property. Aside from the high costs, europe is not america. You cannot expect to sue someone for a billion dollars like in the US. As the potential gain is less than what they could expect in america it could restrain their will to come in europe.

Furthermore, as presented in the article, patent trolls do not add value to the society so lawmakers are trying to avoid them to come in europe. And i totally agree. Spending millions in lawsuits is just a waste of money that could be used more wisely otherwise. However, i undertand that this business might be lucrative. To sue patent transgresser is easy money but I don’t find it fair as you dont produce anything and you take advantage of the system.

Anyway I’m confident. Maybe a few will try in europe but there won’t be a boom like in the US. I just hope that the anti-patent trolls legislation will be efficient and available soon.

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Oleg Nikolaiko
Fist I want to stress that I completely agree with the position defended by the 16 companies which signed the open letter, they are sick of the “trolls” in the US, and they fear that with the new system of unified patent, the “patent trolls” phenomena will hurt the European Union. If it happens, that will result in a lot…
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Fist I want to stress that I completely agree with the position defended by the 16 companies which signed the open letter, they are sick of the “trolls” in the US, and they fear that with the new system of unified patent, the “patent trolls” phenomena will hurt the European Union. If it happens, that will result in a lot of unnecessary costs for producing firms. But on the other hand, I also understand the other side, firms that play on the laws and rules, staying legal, but unfortunately not fair. Our world is enough complex so that everyone must not especially produce or innovate, these non-producing and non-innovating firms are like brokers on the Wall Street, they don’t really takes account of the firm, what interests them… Is money.

My point of view about the utility or annoyance of the “patent trolls” is quite mixed… but still leans toward a rather negative picture of this practice.
In they favor, I can just say that one way or another, they’re contributing to foster innovation by their pressure on firms. Firms have incentives to produce more differentiated products and to innovate to patent their discovery, and then sold it on the patent market.
But now, the negative side of such practice is that the cost of defending against a patent infringement is very expensive, and the Trolls know it! They will offer a friendly arrangement for not suing the firm and avoid the justice fees. For example, in Texas (2004, see link below) the “patent pirates” asks typically $1 million or more, the fees for complete defense, even if successful are about $2.5 million. The problem for the economy is that they target not only huge firms like Apple, Microsoft or Google. They also attacks small businesses, for which such amount represent considerable part of their capital. So these firms will be discouraged to innovate and others just don’t start any business.

Regarding the reinforcement of the risk of landing of the ‘patent trolls’ in Europe due to the unified patent system I can say that risks are relevant, but I also agree with the article of Laurent Lambrecht in LaLibre (see link below), that talks about differences in the legal systems between the US and the Europa. Patent Trolls have already offices at our territory, but now, they should study well European Law.

en.wikipedia.org/wiki/Patent_troll#cite_note-pirates-10

http://www.wsgr.com/news/PDFs/09202004_patentpirates.pdf

http://www.lalibre.be/economie/actualite/les-patent-trolls-bientot-sur-le-marche-europeen-5261ffa83570314ade9eb46e

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Lukas Kelling
First of all, when thinking about limiting the framework for „patent trolls“, one of the most important discussions should be about whether or not they have the right to operate, i.e. if it’s justified for them to operate at all. Thus, it’s crucial to mind the way they obtained their patent portfolio: I think it’s important to distinguish with respect…
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First of all, when thinking about limiting the framework for „patent trolls“, one of the most important discussions should be about whether or not they have the right to operate, i.e. if it’s justified for them to operate at all. Thus, it’s crucial to mind the way they obtained their patent portfolio: I think it’s important to distinguish with respect to the aspect of whether they are acquiring their portfolio from companies which are already producing on the market, exploiting their patents and have already obtained the respective patents or if they are applying for the patents themselves without any intention to make use of them afterwards. For instance, I don’t see a problem with the former case, if one NPE chooses to acquire patents from producing companies, which once filed proper applications for their innovations. Hence, if the patents have been awarded correctly, if they appear to be valid, is out of the question and the buying companies have every right to enforce their property rights, as they payed for them. However in the latter case, if they are submitting patent applications on their own without – if their application is successful – planning to make use of the granted patent right to produce a good or to provide a service, I support the objections and suggestions mentioned by the companies in their open letter, as in this case patent applications should be examined thorough- and much more precisely. For instance, responsible agencies should check for possible overlapping areas or if the patent is easy to overlook for companies – resulting in countless infringements and huge litigation costs – and adjust the breadth of the patent accordingly.

Balancing advantages and disadvantages of patent trolls for society and innovation incentives of companies, I think the small quantity of advantages such as serving as an early indicator for technological change is not sufficient to outbalance the wide array of possible threats they bring about. One of the main aspects is the loss of social welfare in terms of companies creating innovations, as they are facing massive litigation costs. As a cause of this, they have to reevaluate their budget and are required to attribute a much lower value to their R&D department, slowing down overall innovation. Another critical point, once the unitary patent system and patent court will be established, is the possible threat of cross-border injunctions all across the area of the European Union, due to an increased leverage effect. As mentioned in the open letter, if a company’s product has to face a ban in one region due to an injuction, even and especially if the set of patents the associated lawsuit is based on have not been properly examined by the responsible agencies (or they might not be valid because of another reason), the negative effect on innovation and social welfare will be much worse, as with the new patent framework it would spread across more than one country.

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De Bont Eloïse
I think that the unified patent package represents a lot of advantages for the companies Firstly, it will simplify the validation procedure and will lighten the requirements of translation and renewal. Moreover, the unitary patent protection will greatly reduce the cost of European companies. According to the European Commission, a European patent could cost only 4725€, against 36 000€ before.…
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I think that the unified patent package represents a lot of advantages for the companies Firstly, it will simplify the validation procedure and will lighten the requirements of translation and renewal. Moreover, the unitary patent protection will greatly reduce the cost of European companies. According to the European Commission, a European patent could cost only 4725€, against 36 000€ before. Thanks to the system established by the European Union, any person, company or organization, whether European or not, will be able to opt for a unitary patent and obtain a unitary and immediate protection and therefore less expensive.

However, we have to learn lesson from the USA. In fact, the unified patent will probably reinforce the risk that patent trolls appear on the European Market. In fact, I think that this unified patent may allow the NPE to fill their application for patent in the least demanding country in terms of quality and validity and may allow the NPE to bring their disputes to the more accommodating court.

I want to add that it is because the legislation about the patent is not perfect that patent troll can appear on the market. By imposing more adequate law and by taking into account the mistakes made by the USA, Europe could better protect itself against these parasites.

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Justine Costeur
As a beginning, I think that overall the new system of unified patent is a good thing because it simplifies, fastens and lowers the costs of getting a patent and selling it across Europe. The main problem that comes with it is the possible entry of patent trolls in the market of innovation because of the significant profit’s opportunity for…
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As a beginning, I think that overall the new system of unified patent is a good thing because it simplifies, fastens and lowers the costs of getting a patent and selling it across Europe. The main problem that comes with it is the possible entry of patent trolls in the market of innovation because of the significant profit’s opportunity for them. Indeed, if a patent is granted, a firm can sell its product across 13 European countries; a prospect of having the patent revoked must therefore be very frightening. Firms that are attacked might be reluctant to take that risk and easily accept a deal with patent trolls. If it turns out to be the case, it could trigger an increase of patent trolls’ attacks.

What could be threatening for innovators is that because of the new unitary patent system, if a patent is accused of infringement and loses the lawsuit, the product can be withdrawn all over Europe by only one court decision, rather than requiring several revocations in each European country, as it was the case before, which is all the more frightening for firms.

This new system is likely to prompt innovative firms to accept to give licenses to their attackers rather than taking the risk to fight them in court. To my mind, if patent trolls know that, they will take advantage of this opportunity and enter the market. In fact, as said in Laurent Lambrecht’s article: “According to those who signed the open letter, several patent trolls already have set their offices in Europe, this potential new market is attracting them” (1).

Or at least patent trolls might try to enter. And it’s up to the European to show that they won’t let them win by being very careful and maybe putting rules in favor of innovators. “At the very least, trolls should have to prove their patents are actually valid and consumer harms should be considered before giving trolls blocking orders that would impact 500 million Europeans.” (2) I think it’s a good thing that consumers’ well-being is highlighted, and I agree with companies that signed the open letter. Moreover, the culture in the judiciary system is not the same, for instance in Europe, cases are judged by professional judges, not in the US (most of the time).

So as a conclusion, I think that patent trolls will try to enter the market, but they shouldn’t damage the European market of innovation as much as they harm the one in the US.

References:
(1) L. Lambrecht (2013), Les “patent trolls” bientôt sur le marché européen?, LaLibre.be
(2) C. Lacavera (2013), Troll-proofing Europe’s patent system

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Eva Leclercq
I am not one of those who see nothing wrong in the practices of companies called “patent trolls”. I clearly think that this constitutes a problem that needs to be solved. In fact, in my opinion, patent trolls do not create any additional value for the society and they have no real business interest to defend. What upsets me even…
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I am not one of those who see nothing wrong in the practices of companies called “patent trolls”. I clearly think that this constitutes a problem that needs to be solved. In fact, in my opinion, patent trolls do not create any additional value for the society and they have no real business interest to defend. What upsets me even more is that money is an end in itself and not a mean for these firms. Even if I know that lots of capitalist companies have lost their “initial soul” as they became bigger and bigger, I have the hope that many of them were started thanks to the energy and the interest of entrepreneurs who were passionate about what they did. Moreover, non-practicing entities also deliberately hinder companies that try to develop innovations and they more generally put a drag on the general progress in specific fields. Indeed, the firm attacked would have to spend a lot of precious time and money to solve the problem and that energy could not be allocated to the development of their innovation.

Concerning Europe, on the one hand, I recognize that the unified patent system would constitute an additional leverage for patent trolls to get interested by our market. On the other hand, I believe that it is too early to know whether Europe will be invaded by these firms in a few years or not. In fact, the situation needs to be nuanced. The culture is not the same in the US than on the old continent. This important factor could interfere with the development of that kind of practice. For me, the example of Germany which already applies bifurcation and which did not meet an increase in patent troll is an encouraging sign.

Regarding the letter, I understand the fear of these sixteen companies. I agree about the danger of the “bifurcation”, it may give too much power to those who would want to misuse the system. But that would be a problem only if the two courts are not synchronized, that is to say only if the invalidity court is slower than the infringement court. Moreover, I think that the improvements they proposed are not the solution. For me, the answer would be to put a brake to the activities of patent trolls and not only to avoid giving them additional tools for their business. I know that what they do is legal and it is why I think that some laws should be created to stop them.

Sources :

http://www.pcworld.com/article/2049520/patent-trolls-will-gain-from-a-single-european-system-vendors-warn.html
https://www.ipdigit.eu/2011/10/what-to-think-of-patent-trolls-the-return/
http://www.npr.org/blogs/money/2011/07/26/138576167/when-patents-attack

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Lorant Dourte Sarah
Patent trolls are firms that make profit on patent without producing anything. They make money by licensing their patent and by suiting the infringers. They are seen as a phenomenon to eradicate in the economy. I will give one argument in favor of the patent trolls and then I will discuss how the unification of the European patent system could…
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Patent trolls are firms that make profit on patent without producing anything. They make money by licensing their patent and by suiting the infringers. They are seen as a phenomenon to eradicate in the economy. I will give one argument in favor of the patent trolls and then I will discuss how the unification of the European patent system could attract more patent trolls in Europe.

The risk of been suited by patent trolls encourages the businesses to invent complete new things or to differentiate themselves. Even if the idea isn’t exploited by a firm, this idea has already been discovered so it isn’t socially efficient to let another “rediscover” it to use it. It is socially better to use the existing patents by licensing or buying them. But it is clear that patent trolls have bad sides: they ask very high license fee …

On a social point of view, we have to differentiate the lawsuit and license fee that are entirely legal and the fact that they don’t use their patents. If this patents are licensed it isn’t problematic (even if the fee his very high because then the license goes to the firm that value it the most) but the more important issue is the sleeping patents that are owned only to lawsuit other firms. But as sleeping patents are a problem per se, the way to fight against patent trolls’ problems is to fight against sleeping patents. Sleeping patents are not socially desirable because they permit owners to extract surplus from the others without creating surplus by producing.

What is the link between the unification of the European patent system and the coming of patent trolls in the European IP market? First it will reduce by 80% the cost of patenting. As patent troll make profit on the patent themselves, they need on one hand a wide validity territory to be able to sell more license or to suit more infringer firms and on the other hand a reduced patenting cost.

http://googlepolicyeurope.blogspot.be/2013/09/troll-proofing-europes-patent-system.html
http://europa.eu/rapid/press-release_IP-11-470_en.htm?locale=en

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Anne-Cécile Annet
I am quite agree with the position defended by the companies that signed the open letter. The purpose of a patent system is to promote innovation. “Patents encourage inventors to publicly disclose their inventions, sharing knowledge and spurring further progress.” But we can see that in the United States, the abuse of dubious patents has the opposite effect by blocking…
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I am quite agree with the position defended by the companies that signed the open letter. The purpose of a patent system is to promote innovation. “Patents encourage inventors to publicly disclose their inventions, sharing knowledge and spurring further progress.” But we can see that in the United States, the abuse of dubious patents has the opposite effect by blocking innovation. Patent trolls have harmful effects on the innovation. “Trolls use the threat of expensive and extended litigation to extract settlements, regardless of the merits of their claims.”

I find that of course the future unitary patent will have some positive aspects, it will lead to the reduction of costs at the time of grant, reduced costs for maintenance in force of a European patent on the whole territory of the EU. The amount of the annuity will probably lower the total national taxes paid today for the same territory, reducing costs for litigation involving several countries.

But I also think that the unified patent package will seriously reinforce the risk of ‘patent trolls’ landing in Europe. The costs of registration and protection in the courts will be reduced, so innovation and competitiveness will be strengthened, but at the same time, patent trollers will have a huge opportunity namely the excessive use of the law.

In conclusion, my opinion is that we should listen the 16 European and U.S. companies which have wrote the letter, they are suggesting improvements to the Unified Patent Court’s proposed rules. These fixes will help the EU system avoid the issues that have hit the U.S. and will ensure companies are investing in innovation and growth and not in patent litigation.

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Hippolyte Dispa
I do believe that patent trolls are placing a drag on innovation. Even though they are solely defending their property, one can wonder about their real usefulness and their benefit to society. I see them merely as a way to extort money from companies attempting to innovate. Their enormous impact on American economy – they have drained 29 billions of…
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I do believe that patent trolls are placing a drag on innovation. Even though they are solely defending their property, one can wonder about their real usefulness and their benefit to society. I see them merely as a way to extort money from companies attempting to innovate. Their enormous impact on American economy – they have drained 29 billions of $ in 2011, is on the verge of landing in Europe.
As do the 16 companies that signed the open letter, I also believe that a unified European patent system is a noble goal and a required step on the path to global innovation. It would increase European competitiveness and grant companies a larger protection. However, when talking about bifurcation, I am one of those who advocate for a linear process rather than a simultaneous one. Indeed if a the patent infringement is recognized by a court, the product may be forbidden on the global European market even though the validity of the infringed patent has not been ruled yet (this is true when considering a slower invalidity court than infringement court). The questioning of the validity should thus be prior to the infringement ruling. Although the European ruling system is different from the American one and the effects might be less significant. But the first cases to be ruled out by European courts would be of the upmost importance, as they would draw the future of patent trolls. If the linear concept is not applied, it would drive companies to move R&D outside European border in order to avoid lawsuits from patent trolls or NPEs. Also, the ban of the product at a European scale would give tremendous power to PAEs – and entities alike, as the losses for companies infringing those shady patents would be gigantic.
In conclusion, I believe that the unified patent court as it is designed know will undermine innovation in Europe as patent trolls will take advantage of it. Let it be on the patent delivering procedures or on the unified patent court, small adjustments are necessary in order to make it an efficient ruling tool.

Sources:
https://www.ipdigit.eu/2010/11/what-to-think-of-patent-trolls/
http://www.lalibre.be/economie/actualite/les-patent-trolls-bientot-sur-le-marche-europeen-5261ffa83570314ade9eb46e
UPC – Industry Open Letter : https://docs.google.com/a/student.uclouvain.be/file/d/0Bw8Krj_Q8UaEd3U1dUJ3SVp6LTQ/edit

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De Greef Thibaut
Obama’s administration, considering the Patent trolls as a non-productive and useless actor of the economy only extracting money from others, is engaged since 2011 in the regulation of Patent trolls. With the America Invents Act signed in 2011, patent holders must now, for example, file individual lawsuits to prevent that a patent holder sues tens of companies in a unique…
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Obama’s administration, considering the Patent trolls as a non-productive and useless actor of the economy only extracting money from others, is engaged since 2011 in the regulation of Patent trolls. With the America Invents Act signed in 2011, patent holders must now, for example, file individual lawsuits to prevent that a patent holder sues tens of companies in a unique lawsuit. On 4th June 2013, the Obama’s administration proposed to the congress a powerful patent troll killer legislation that would allow federal judges to force abusive patent troll that lose in court to pay expensive attorneys fees of the corporation they sue. We can understand the decisions of the USA’s government since we know that patent trolls costs 29 billions of dollars to the American companies for the single year of 2011.

The European proposition to create a unique patent for all the European market, instead of patent own to each country, has many advantages for innovative companies because it reduces the costs of patents since there will be costs for a unique patent only instead of costs in each country. It’s also a considerable gain of time. But besides, it will makes the European market also more attractive for patent trolls. Indeed, the application of a unique patent make the threat of patent trolls more powerful because it will be possible for them to forbid the sale of some products, thanks to the “bifurcation”, on the whole European market where patent trolls had before to act country per country to forbid a product. It will thus certainly lead to the apparition of many patent trolls.

A unique patent for the whole European market seems to be a great decision but the European government has thus also decision to make in order to protect the companies from the adverse effects of this new law. Although the US market conditions are not the same as the European market conditions (jury in USA vs. Professional jury in Europe for example), the bifurcation would allow patent troll to extract money from big companies by asking them to pay to drop the charges for the violating of patents.

The European government has thus, according to me, to judge of the validity of a patent and to judge all the cases of infraction in the same court to prevent situations of abuse.

In addition, they should take some decision to deter the business of patent troll because I think it’s a useless actor that slows the real participative economy. It’s a business based on a deficiency of the patents. Patent trolls are investment funds. Therefore, the government should create more incertitude on the rentability of this business. By taking some decisions as the obama’s administration took on 4th June 2013, the European government could deter private investors, which are mostly not IP specialist, to invest in this business making it a more risky asset in their view.

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Cibuabua Yves
Patenting is a way to protect and promote innovation, to encourage firms to invest in R&D, we agree to allow them to enjoy during a certain time the benefits acting like monopolists. The holder of certain exclusive rights (patents) can use or sell his invention for up to 20 years. The efficiency of these innovations allow firms to produce…
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Patenting is a way to protect and promote innovation, to encourage firms to invest in R&D, we agree to allow them to enjoy during a certain time the benefits acting like monopolists. The holder of certain exclusive rights (patents) can use or sell his invention for up to 20 years. The efficiency of these innovations allow firms to produce in a different way.

The problem, when talking about “patent trolls” is that we have some firms trying to get the highest patents portfolio (buying these patents from other firms) to use them against productive or creative firms, which produce by using technologies patented. The NREs (non practicing entities) will threat the firm using their technology to intent a lawsuit, or it has to pay an expensive royalty. To avoid long and expensive lawsuits (litigations) some firms agree to pay these highest fees.

The system of unitary patent is a way to protect innovations in a number of countries, this way, firms are better (they don’t have to waste their time in replicating their patents in all other countries where they produce) due to the consequences of the unicity. The fear to import in Europe the trolling from US is not that important, the Unified Patent Court compose of professional judges, this way we correct the bad side of libations in the US when 60% of cases are deliberate by a jury.

In my opinion, the firms of the open letter are afraid, but there is no need to be. This is an important way to increase the amounts accorded to the research side instead of resting on its laurels. Firms who will continue being competitive will try to stay productive in still innovating.. We have to modify some bullets when filling for a patent, the patent office need to check if the real productive utility of the future patent is economically efficient and the Courts can force the loser party to pay some fees to the winner, this way trollers could be harmed by the new threat.

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Jean-Benoit Valschaerts
I think the unified patent system will indeed increase the incentive for patent trolls to 'enter the European Market'. It seems quite logical that the larger the market is, the larger the sums involved are, and thus the amounts patent trolls could get from infringing companies. Though I haven't enough information to tell wether the increase of the incentive will be…
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I think the unified patent system will indeed increase the incentive for patent trolls to ‘enter the European Market’. It seems quite logical that the larger the market is, the larger the sums involved are, and thus the amounts patent trolls could get from infringing companies.
Though I haven’t enough information to tell wether the increase of the incentive will be large enough to attract patent trolls.

I totally agree with the arguments developped by the author when he says that the culture of litigation is very different in Europe in comparison to the American one.
I wanted highlight an argument against the araising of patent trolls. In European legislation, or at least in the Belgian one and I suppose it’s the same in other EU countries, there is no such as a punitive damage. Often these punitive damage raise the compensation for the attacker to incredible levels. Yet to ask for punitive damage, one has to prove that the defendant infringed the patent deliberatly. But as patents are public information and accessible to everyone, punitive damages are eligible in most cases.
This raises the expected revenue for the patent troll. But because European courts don’t recognize punitive damage, the expected value of the compensation is much lower and so is the incentive to sue infringers.
Though as I said above, research would be needed to look at the extend of these incentives to sue someone under the unified European patent system and if they are profitable enough for patent trolls.

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Ricardo Pereira Gomes
These fact are very important and dangerous for the innovations. The first role of patents were to protect the innovators to encourage innovation but finally we observe that this patent may have, something, the opposite effect. "Patent trolls" just avail the fails on the patent system, doesn't create anything and furthermore they discourage the other firms to innovate. This issue is…
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These fact are very important and dangerous for the innovations. The first role of patents were to protect the innovators to encourage innovation but finally we observe that this patent may have, something, the opposite effect. “Patent trolls” just avail the fails on the patent system, doesn’t create anything and furthermore they discourage the other firms to innovate.

This issue is very important and it’s very important to find a solution before unified patent package. Because after this unification, we might have a lot of different patent, indeed, until now patents might have delivered only in such countries. Thus after the unification, we will have a lot of patent and “patent trolls” may have greater opportunities to make money without innovate.

To solve this problem, in my opinion, the best way it’s to act on the roots, i.e. the conditions for a patent to be granted. Patents are too easily deliver and by this way we create patent that doesn’t create value because this innovations are not ended. We have to protect innovators during the time of those researches but this protection must be temporary and if we see that we don’t have results thus we should “open the door” for the other innovators which may be more efficient. But the first innovator will need to be reward for this part of the job. All of this is to say that we need to limited the number of patent granted, we need to restrict patent on innovations that are worthwhile projects.

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Sylvain Choquet
I think that the risk of having patent trolls in europe is non negligible because, as said in this article (http://www.lalibre.be/economie/actualite/les-patent-trolls-bientot-sur-le-marche-europeen-5261ffa83570314ade9eb46e), some american "patent trolls" have already opened offices in Europe. However these "companies" will have to adapt to the european market and law, especially the fact that courts in Europe are not composed of popular jury but of professional judges.…
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I think that the risk of having patent trolls in europe is non negligible because,
as said in this article (http://www.lalibre.be/economie/actualite/les-patent-trolls-bientot-sur-le-marche-europeen-5261ffa83570314ade9eb46e), some american “patent trolls” have already opened offices in Europe. However these “companies” will have to adapt to the european market and law, especially the fact that courts in Europe are not composed of popular jury but of professional judges. In order to fill a lawsuit they have to prove that their patent are of sufficient quality and that they cover european jurisdiction.
These companies will however have incentives to investigate the market, and try their business model in europe, primarily because the UPC will cover 3 countries of the G8 and nearly 500 millions consumers (number that gives important leverages for injunction lawsuit, and for pay-off from companies).
Anyway there are already “patent trolls” on the european market (see IPCom, and France Brevets for instance) that are quite successful at patent litigation procedures.

What the UPC could change is:
1) The size of the infringement procedures (nearly 500 millions consumers) and thus, incentives to initiate lawsuits.
2) The possibility to fill a patent infringement in only one country, thus leading companies to choose the country with the quickest, most favorable litigation system.
3)Bifurcation process with the possibility to block patents while the validity is checked, could harm both producers (by preventing the commercialization of their products during the time of the lawsuit) and consumers (by reducing the number of products available). This could lead producers to opt for a compromise instead of defending themselves.

In view of these facts, I think the UPC should be first tested, and further modified if troubles arise. Fortunately, there is still the possibility for the companies to fill a european patent out of the UPC, or fill patents in each country in order to force “patent trolls” to fill lawsuit in each country.

Sources:
http://ipkitten.blogspot.be/2013/03/bifurcation-of-european-patent.html
http://www.iam-magazine.com/blog/Detail.aspx?g=b49115b8-922b-400e-8134-6ec61f0a7d48

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Valentine Lowagie
I don’t agree with the position defended by the signatories of the open letter. The first argument of this letter is the one of bifurcation but I don’t think it is convincing. Indeed, as it is said in the article, bifurcation already exists in Germany which is one of the three biggest countries of Europe. So, if bifurcation in the unified…
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I don’t agree with the position defended by the signatories of the open letter.

The first argument of this letter is the one of bifurcation but I don’t think it is convincing. Indeed, as it is said in the article, bifurcation already exists in Germany which is one of the three biggest countries of Europe. So, if bifurcation in the unified patent regime must cause problems, we should already observe these problems now with Germany. In addition, according to Willem Hoyng, a member of the Preparatory Committee, the companies’ fear of patent trolls is overstated because the future bifurcation system is different from the actual Germany’s one. Indeed, it doesn’t require the splitting of the validity and infringement cases. This system can thus only be harmful if the invalidity court is slower than the infringement court, which is the case in Germany. However, according to Hoyng, this shouldn’t happen in the future bifurcation system.

Moreover, the majority of the signatories of the open letter are American companies. Yet, the legal system in the US differs from the one in Europe, which may explain that their fear is overstated. According to Ric Henschel, a partner at Foley and Lardner LLP (international law firm) in Washington D.C., the future European unified patent system has many advantages compared to the US system, among which no jury trial. He even says : “ It looks like the pieces are in place for a system that’s effective and one that has controls and safeguards against litigation abuse and venue shopping ”.

References :

http://www.computerworld.com/s/article/9242697/Patent_trolls_will_gain_from_single_European_system?taxonomyId=144&pageNumber=2
http://www.sciencebusiness.net/news/76292/Europe%E2%80%99s-unitary-patent-to-launch-in-2015-%E2%80%93-but-will-companies-embrace-it

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Ruben Savelkoul
I agree that the unified patent system reinforces the risk of 'patent trolling'. This is pretty straight forward to me, as the bigger market for patents means that there are more profits to be made through litigation while the costs of litigation itself don't increase. The key to this problem, I think, is to be very careful in patent design when…
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I agree that the unified patent system reinforces the risk of ‘patent trolling’. This is pretty straight forward to me, as the bigger market for patents means that there are more profits to be made through litigation while the costs of litigation itself don’t increase.
The key to this problem, I think, is to be very careful in patent design when granting patents and when judging if there are infringements or not. In general, ‘patent trolls’ are seen as firms that pick up cheap patents and exploit them by preventing other firms to use the technology.
There are two parts to this: first, some patents are cheap to pick up, implying that it was easy to develop the technology they protect. If this is the case, one can ask if these technologies should be covered by patents. Maybe they are not ‘new’ enough to be covered by patents, given the industry knowledge. I think one should be careful to grant patents to such technologies, especially if they are not directly applicable and need further research to be implemented in marketable products. Apart from that, it is important not to grant patents that are too broad or long as it would be relatively easy to use them to prohibit other firms from innovating.
The second part of it has to do with jurisdiction. Assessment of possible infringements should therefore be equally careful, such that firms won’t be scared to be falsely convicted for infringements when developing new products.
As a conclusion, I’d say that when design and granting of patents as well as the jurisdiction work well, the problem of ‘patent trolls’ should be minimal. A market for patents could emerge where firms only try to benefit for patents according to their worth or research costs, as it should not be profitable to make big profits from easy patents. If this market works correctly, firms could justly pay for patents or licensing when developing its own products. The downside to this is that it would bring great costs to the governing authorities, for researching patent applications and jurisdiction.

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Arnaud De Visscher
In my opinion, I completely agree with the position defended by the companies that signed the open letter. As it was nicely said in this letter, the whole point of a patent system is to promote innovation. I extol creation, innovation and thus technology. It might be too naïve, but I think everyone should do his/her best to develop…
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In my opinion, I completely agree with the position defended by the companies that signed the open letter. As it was nicely said in this letter, the whole point of a patent system is to promote innovation. I extol creation, innovation and thus technology. It might be too naïve, but I think everyone should do his/her best to develop our society which is highly dependent of technology. When you think about it, Humans started with fire and thousands years later we use sunshine’s energy to create electricity. It’s unbelievable. I think it’s our duty to carry on this progress. Science, creation and innovation are the key aspects to keep on such deal.

So when I hear of patent trolls, all I think about is people throwing some sand into the wheels of innovative firms. It already takes a lot of time and money in research and development that we don’t need patent trolls to lose more of it. This is the reason why I hate such patent trolls. They create nothing and are asking for everything. But I have to admit, patent trolls use a smart strategy.

I think that the patent package will reinforce the number of patent trolls because those Non-Practicing Entities will see a greater opportunity to earn money. The only thing left to do for them is backing the right horse. Although the number of patent trolls will be higher, I’m not sure that an innovative company will be the loser one (that is the one who loses more money after than before the patent package law). Suppose a firm X wants to settle on the European market but need a patent hold by a Patent Assertion Entity. There is a high probability that the transaction between those two entities will be more costly than before the patent package law (due to what is at stake). But thanks to this patent package, this same firm X might be better off (See course with the notion of patent pool). It has indeed to do the transaction only once and not for every country of Europe as it did before.

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Massot
Firstly I want to say that I think that a common regulation, thus position, from Europe is a good thing. It helps having a clear view and will benefit small companies which wish to expand but don't have the means to be kept informed on all the regulations in every european country. I do not think that the unification of…
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Firstly I want to say that I think that a common regulation, thus position, from Europe is a good thing. It helps having a clear view and will benefit small companies which wish to expand but don’t have the means to be kept informed on all the regulations in every european country.

I do not think that the unification of the law is the real issue, I think what’s important is it’s content. Speaking as one is not the problem, what maters more is what we say. The patent trolls are companies making profit on the failings of the system so it’s important to be ahead of them with a well thought system.

Finally Europe is not like the United States in its way of doing things. Since a special judge is appointed to treat these kind of cases, it’s less likely that the same problems will arise. In the article it is stated that the legal procedures in Europe are often to slow, why not include in the package an accelerated procedures for these kind of demands so as to protect companies which are being leveraged.

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Solène Thibaut
Concerning 'patent trolls', I agree with the fact that they are stifling innovation because even though they are in their right to sue for a patent infringement, they are not adding any value 'to the world' with it, they aren't creating anything, in terms of innovation. But I don't blame them, just because, as I just said, they are in…
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Concerning ‘patent trolls’, I agree with the fact that they are stifling innovation because even though they are in their right to sue for a patent infringement, they are not adding any value ‘to the world’ with it, they aren’t creating anything, in terms of innovation.
But I don’t blame them, just because, as I just said, they are in their right. Although, I believe that it is mainly due to a lack of patent control, before they are validated.

Concerning the unitary patent court, I believe that two courts managed by professional and impartial judges may treat different patent issues : the infringement and the patent protestation, but I think that both should be linked. For example, any claim for infringement should go through a first court controling the validity of the patent. This would create incentives for the company against a patent troll to punish it and not having to spend any money doing it (except from the lawyers fees, which I assume lower than the potential negociation price).

I also believe that patent trolls would not come in Europe if they were not allowed to patent non operating patents. And their existence in general is even questionable. Because if an idea is patented but not used, no one else can then come up with a product using that idea and it is then a real social loss. They are thus well stifling innovation.

In a nutshell, I would say that the patent law should be revised to make sure no useless patents are created and that no patent trolls can steal “potential innovation” from the society.

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