Patent-Troll

Patent Troll (also called " patent hunter ", " Godfather Thai " or " patent privateer ") is a derogatory term for people or companies that use patents in an inappropriate manner. For this purpose, sometimes even those are expected to acquire the patents, without wanting to ever employ a patent underlying technical invention. However, this is problematic since there are quite legitimate interests to exploit patents, you do not even exercise nonetheless. In this case, one speaks also of neutral Non- Practising Entities, NPE ). Not every NPE is therefore also a troll. Rather do this must be added circumstances which actually allow the exploitation intention appear to be unfair, such as the assertion of so-called trivial patents whose respect results inventive step, see § 4 of the Patent Law and Article 56 EPC or even novelty, § 3 of the Patent Law, Article 54 EPC is often already obviously questionable.

Definition and etymology

Patent trolls can use the patent right to occupy with sometimes unusual, but legal means royalties. This often relates to companies which do not produce their own products and their workforce is recruited only from lawyers. Since many companies to establish normal for purely defensive reasons patents with very broad claims, it is time the patent privateer, if those companies are insolvent. Their patents are then acquired and utilized. For the first time publicly the term patent troll was in the nineties by the then attorney Intel ( Deputy General Counsel ) Peter Detkin needed him now but when the " plaintiff I do not like " ( Engl.: plaintiff, I do not like ) defined. The term " troll ", however, was not created by Peter Detkin but of Anne Gundelfinger. The legal department at that time was looking for a handy, concise name for the more often occurring companies and individuals who specialized in the enforcement of patents, without even selling products in the market. The Intel legal department asked its members to submit proposals for such a catchy name and Gundel finger proposal " Troll " is selected. The term is probably similar to the term troll as a derogatory term for an interferer in social networks.

" Patent troll " is a broad term. Even larger companies are suspected to enforce their patents as patent trolls against other companies. At its core, however, companies are not applied to their own products so named, which may have come in various ways in the possession of a patent (non practicing entities ).

• Enforces patents against potential infringers without itself to have such a product, or to use such a method;
• Enforces patents without having obtained through research that; or
• Is only interested in enforcing its own monopoly.

The term was known in the U.S. about 1993 in order to characterize the there pervasive aggressive behavior of certain small businesses. This process is known in economics as a fight for power-free income by the " political retirement " abzielendes behavior.

The term is also used in connection with trivial patents. Such patent trolls try to acquire as broadly and vaguely worded patents that allow disproportionate receipt of license fees. This makes it easier later possible to extend the patent on the area of ​​interest, since it " to read on the injury subject" in retrospect at a familiar object to all viewers, including and especially the judges, is psychologically easier for an unclear situation. Another possibility is to obtain protection by patent rather complex issues, such as control engineering and then others to confront them. These can then be adequately defended only at high cost, making them one - prefer licensing system - then comparatively cheaper.

Yet another variety is to proceed from a bundle of numerous patents, with the same intention, and - as expected - similar deterrent effect on those attacked. With these patents then just small and medium-sized companies that make inventions described in the patents independently or these techniques are used, involved in lengthy litigation.

Increasingly of patent trolls also questioned companies at trade fairs or with feigned interest in cooperation and newly introduced to the market products analyzed. It recognized innovations are then registered by the patent troll. This method is increasingly also used by direct competitors. International companies prepare appropriate U.S. subsequent applications a particular problem because the U.S. patent law recognizes only a limited definition of novelty and thus acts abroad is not contrary to U.S. patent. In the rest of the world such patents unlawfully obtained are generally used only after several years, especially against the actually legitimate company, as it is no longer in a position then by the destruction of documents and employee turnover often to prove their earlier rights.

The most discussed patent troll was previously the Californian one-man company Eolas, the software manufacturer Microsoft sued in 2003 and U.S. $ 521 million, successfully fought. In summer 2004, the first instance decided in favor of Microsoft, Eolas then went to appeal, the case is still open, in early March 2005, the case was remanded by the court of first instance.

The placement and use of so-called submarine patents is called Patenttrolling.

According to a study by the Boston University patent trolls have caused in the past 20 years, a loss of a total of 500 billion dollars of U.S. firms. This value was determined from the loss from exchange transactions, which were accompanied by patent infringements.

The German company IPCom has specialized in patent lawsuits against mobile phone companies such as Apple, HTC and Nokia.

Criticism and problem solving

U.S. President Barack Obama criticized the problem of patent trolls on February 14, 2013 a Google Hangout: " They do not produce anything Actually 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. "With the Leahy -Smith America Invents Act (2011 ) is a step towards the negative developments in U.S. patent law should be.

Legal terms

However, the German Patent Act already for a long time also defense instruments against patent trolls, such as § § tried 144 and 145 former establish economic equality of arms, the latter governs least the problem of chain suits, in which an action lined up on the other.

Excerpt from the German Patent Act:

§ 144 of the Patent Law - Dispute value reduction (1) ..., the court may order [ ... ] that [ ... ] court costs, according to one of their Economic situation matched part of the amount in dispute is measured. The [ ... ] favored party charges her lawyer also only payable under this Part for the value of ... § 145 of the Patent Law - Forced to suit concentration Due to another patent .. only then make a fresh application for the same [ ... ] action, if he was not able to no fault of his, also this patent in the earlier litigation to claim it. However, patent trolls move in purely formal terms within the statutory provisions. Also, the above-described " plagiarism " is not a crime, but can only be addressed by patent law Vindication, which must complain circumstances in each country where a patent family of the claimant. The expense of the claimant is hereby - compared with the low financial risk of patent trolls - disproportionately high. In the above-mentioned increasing grievance that "only a small fraction of applications proves to be usable for industrial use novelty" had, however, already in 1974 the Federal Constitutional Court in "disclosure, patent law " 1 BoL 5/70 back.