Patent assertion entities (commonly known as 'patent trolls') hurt competition and innovation. This book, the first to analyze the most salient issues related to patent assertion entities around the world, integrates economic theory with economic and legal reality to examine how the entities function and their impact on competition. It also offers legal and policy solutions that might be used to combat them. Edited by D. Daniel Sokol, the volume collects chapters from an array of leading scholars who describe patent assertion entities in the United States, Europe, Korea, Taiwan, Japan, and China, while offering empirical accounts of the entities' economic consequences and their use of litigation as a means of legal extortion against many of the most innovative companies in the world, from startups to multinationals. It should be read by anyone interested in how patent assertion entities operate and how they might be stopped.
Patent Assertion Entities (“PAEs”) are playing a growing role in the United States, but also in Europe. Their activities are controversial in that while they may be a source of efficiencies, they may also create anticompetitive harm. Given the growing trend of operating companies transferring patents to PAEs in order to increase their licensing revenues, the risks of anticompetitive harm created by PAE activities must be taken seriously. When analysing the impact of PAE activities on competition, a distinction must be drawn between “pure” PAEs, which acquire patents from a variety of sources and generate revenues by asserting them, and “hybrid” PAEs, which acquire patents from operating companies and maintain a relationship with these companies post-acquisition. While pure PAEs create risks of exploitation, hybrid PAEs create exclusionary concerns as such PAEs may be used by operating companies to harm their rivals on downstream product markets. These exclusionary concerns are particularly serious when the operating company retains a significant degree of control over the activities of the PAE following the transfer of the patents. As there is currently no EU competition case-law on the activities of PAEs, this paper attempts to show through hypotheticals that depending on the circumstances of each case, privateering may lead to exclusion.
PAEs have been much in the news because of certain practices that imply their demand for royalties is nothing more than extortion based upon the nuisance value of a lawsuit the PAE might bring, or explicitly threatens to bring, if no agreement is reached with the party practicing the patent. The PAE phenomenon has prompted suggestions that the antitrust laws be applied to limit the effect that PAEs have upon innovation by the companies most affected, typically those in the high-tech sector.We conclude there is no evidence at this point that PAEs create a new or unique antitrust problem, that their business model warrants more or less scrutiny than others as a matter of antitrust analysis, or that competition enforcement agencies would be coming to the aid of consumers by devising creative extensions of or departures from the standard antitrust framework in order to address PAEs' conduct and business arrangements. If and when PAEs present legitimate antitrust problems by acquiring or otherwise creating market power to anticompetitive ends, which is certainly possible, the standard antitrust framework is fully capable of reaching that conduct and providing adequate remedies.This is not to say some activities of PAEs are not problematic or do not call for law reform insofar as PAEs are exploiting aspects of the litigation system to extract settlements based not upon the merits of their claims but rather upon the cost of defending against them. The rise of PAEs, however, does not mark the first time lawyers have found a way to profit from bringing or threatening to bring cases purely for their settlement value. Indeed, this has been a recurring problem, though it has arisen in a variety of otherwise unrelated types of litigation.Therefore, we suggest caution before changing substantive antitrust standards or enforcement policies to reach PAEs rather than proceeding upon the reasonable premise that the inefficiencies associated with PAEs are the result of a litigation problem.
Patents as an Incentive for Innovation Edited by Rafal Sikorski & Zaneta Zemla-Pacud Patents are a reward for human inventiveness. A well-functioning patent system must provide incentives for innovation, safeguard dynamic competition and protect the public interest – a balancing act fraught with difficulty in the ‘connected’ global world. This ground-breaking book is the first to deeply analyse how patent law today performs its function of stimulating innovation in the crucial sectors of healthcare, agriculture, artificial intelligence and communications technology. Patent specialists, practitioners and scholars from various jurisdictions thoroughly describe how patent rights can be deployed to incentivize investments in researching and developing socially critical innovations without sacrificing the public’s interest in sharing the benefits that are produced. Among the emerging issues of patent rights investigated are the following: protectability and morality of according private rights over material derived from the human body; licensing on fair, reasonable and non-discriminatory (FRAND) terms; the supplementary protection certificate (SPC) manufacturing waiver; patent eligibility of artificial intelligence-related inventions; excessive enforcement of patents by patent assertion entities; enforcement of second medical use innovations; the so-called farmer’s privilege, the farm-save seed exemption, and breeders’ rights; international trade regulations and their influence on patent systems; human enhancement technologies and the consequences of patenting them; specifics of patent protection for biologic medicines; challenges posed by artificial intelligence for the disclosure requirement in patent law; and standard essential patent licensing, particularly in the context of the 5G standard. Perspectives taken into consideration by the authors include protectability criteria, length and scope of the granted protection, mechanisms for dealing with the friction between generalized application and specialized concerns, and rights enforcement. These aspects are analysed on the domestic, international and global levels. The COVID-19 pandemic has highlighted the urgent need to strike the right balance between innovation and access in healthcare and other technologies, a need rooted in patent law. Because the problems discussed – and solutions offered – in this collection of expert essays are of tremendous practical and cultural significance, the book will be of immeasurable value to practitioners, policymakers and researchers in patent law and other fields of intellectual property law.
Through a collaboration among twenty legal scholars from North America, Europe and Asia, this book presents an international consensus on the use of patent remedies for complex products such as smartphones, computer networks, and the Internet of Things. This title is also available as Open Access on Cambridge Core.
Innovation benefits consumers through the development of new and improved goods, services, and processes. Competition and patents stand out among the federal policies that influence innovation. Both competition and patent policy can foster innovation, but each requires a proper balance with the other to do so. This report by the Federal Trade Commission discusses and makes recommendations for the patent system to maintain a proper balance with competition law and policy.
This unique book provides a comprehensive account of the patent misuse doctrine and its relationship with antitrust law. Created to remedy and discourage misconduct by patent owners a century ago, its proper role today is debated more than ever before.
The DOJ and FTC held a hearing on patent assertion entities (PAE, defined as an entity that uses patent primarily to obtain license fees, rather than to support the transfer or commercialization of technology) on Dec 10. This talk gives an overview of the economics, policy of patent assertion entities drawing upon previous and new empirical work. Using pathbreaking, disruptive techniques and capturing economies of scale, PAEs drive down the cost of patent enforcement. So far in 2012, PAEs have brought 61% of all patent litigations against fewer defendants than in 2011, due largely to changes in the law through the America Invents Act. 76% of PAE defendants were sued by a PAE that sued more than 15 defendants, and 61% were sued by a PAE that had brought 8 or more cases. These and other details about their business model, practices, and policy concerns are discussed in this powerpoint presentation.
