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Archived updates for Tuesday, July 11, 2006

A Comparative Approach to Patent Trolls

According to "Patent Trolls in the U.S., Japan, Taiwan, and Europe," in the CASRIP Newsletter for Spring/Summer 2006, commentators have put forth a number of reasons to explain why so-called "patent trolls" thrive in the U.S. patent system, including our:

  • Liberal Approach to Patentability
  • Ability to receive a Permanent Injunction
  • Rampant Forum Shopping
  • Treble Damages
  • Low Threshold for Nonobviousness
  • High Reversal Rate of the Federal Circuit

In Japan, the terms "patent mafia"and "patent rouge" have also been used to describe this phenomenon. However, in contrast to the U.S., there "is only one famous domestic patent troll case" in Japan, ADC Tech. K.K. v. NTT DoCoMo, Heisei 15 (Wa) 28554, (Tokyo D. Ct., Oct. 1, 2004), where the troll lost because the Japanese Patent Office "decided to revoke the patent on the lack of nonobviousness." The authors point to several factors that that may help keep patent trolls at bay in Japan:

  • Higher Judicial Stability - the trial to appeal differential rate of civil patent infringement cases in Japan is only 18% - "This low rate indicates the judicial consistency between district courts and appeals courts in Japan."
  • More Reasonable Damages
  • More Effective Administrative Proceedings
In Taiwan, "there are no domestic patent troll cases," perhaps because the market is small, relatively immature, and litigation is "innefective." Along with different jusrisdictions for validity and infringement determinations, the losing party bears responsibility for court costs.

Lastly, U.S. patent trolls sometimes assert their patent rights by sending cease and desist letters to all related parties such as customers, distributors or retailers maliciously. However, in Taiwan, if such behavior truly affects the market and economic order, the patentee could be fined by the Taiwan Fair Trade Commission in accordance with Fair Trade Law. Under this kind of circumstance, the patent owner would not be able to threaten people by sending mail maliciously.

Although European patent trolls also appear to be limited, Britain's BTG filed suit against Amazon.com and Barnesandnoble.com based based upon a U.S. patent acquired from Infonautics, a Swiss software development company. The authors suggest that differences between the European and the U.S. litigation systems may be keeping patent trolls away from Europe for now. For example, although a European Community-wide patent has been discussed, issues such as validity or infringement must currently be dealt with on a country-by-country basis. Although litigation costs are generally lower in Europe, contingency fee arrangements are generally not allowed and the loser must often pay all attorney fees.

Click here to join the mailing list for the Center for Advanced Study and Research on Intellectual Property (CASRIP) of the University of Washington School of Law.
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3 Comments:

Anonymous Anonymous said...

If you think that Rambus is a patent troll, than you are nothing more than a hack legal journalist. Rambus' IP has been systematically stolen by huge corporate thieves that have tried to put Rambus out of business and are now pleading guilty to price-fixing and other collaborative illegal activities. You owe Rambus an apology and you need to expand your intellectual education before you call innocent companies patent trolls.

July 14, 2006 10:02 AM  
Anonymous Anonymous said...

Oh please, Rambus is the prince of trolls. First it gets patents on arguably inventive memory technology. Then, when JEDEC adopts new standards that don't include its patented tech, they amend the patent claims to cover the new standard. When they were a JEDEC member, they told everyone they didn't have patents (or lied through silence by failing to tell other members of their patents, in violation of the rules of JEDEC membership), in a deliberate scheme to abuse the patent laws to corner the memory market.

Its inventors might have been ignorant as to how the execs and patent lawyers were acting to defraud the industry and memory consumers, but Rambus is by no means an innocent company. They tried and failed to get their RDRAM adopted as a standard, and now they want a Rambus tax on all the other memory technology out there, and are rewriting patent claims on future standards in order to do it. They're con artists masquerading as engineers.

June 04, 2007 2:26 AM  
Anonymous Anonymous said...

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April 07, 2009 2:49 AM  

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