INTRODUCTION
We are living in an ever-evolving technological landscape where patents work as an essential tool for incentivizing innovation and safeguarding intellectual property. As we all know every coin has a dark side, people have also found a way to misuse this law for deriving benefit. The foundational principle of the patent law is quid pro quo exchange wherein an inventor shares his innovation with the world and in return he is granted a limited-time exclusive right to the subject matter of the patent. This whole arrangement serves two purposes; it enhances the collective knowledge pool and helps in further innovation by enabling others to do further innovation with the prior available information of the innovation.[1]
It makes an arrangement where the patent holder has the power to sue someone who infringes his patent rights however the alleged infringer also possesses the power to challenge the validity of the patent and this power helps prevent the companies from misusing their power to file lawsuits indiscriminately but when this has not been taken care of then the patent trolling starts.
DEFINITION OF PATENT TROLLING
Patent trolling is often practised by non-practicing entities (NPEs) and patent assertion entities (PAEs).[2] “In simple terms, a patent troll is a person or business that buys patents from other companies, files lawsuits against other businesses to blame them for patent infringement, and then profits from the lawsuit instead of producing own goods or services.”[3] The main aim behind patent trolling is to earn profit or to stifle the competition.
The practice of patent trolling is not illegal, but it involves bad faith when the patent trolls make infringement threats and licensing demands to alleged infringers and require companies to spend a significant amount of money to settle these claims.[4]
PATENT TROLLS IN INDIA
The Patents Act, of 1970 [5] does not expressly prohibit patent trolls however it provides some provisions that help curb this problem. The provisions are mentioned below:
- Post-grant opposition: the principle means that even after a patent has been granted, it can be challenged on certain grounds. Section 25(2) of the Patents Act, 1970 [6] provides a chance for people to oppose the grant of a patent to any person before the passing of one yearfrom the date of publication of the grant of a patent, on any of the grounds specified therein. The section further provides that a person may do so by giving a notice of opposition to the Controller. After receiving the notice the controller gives this information to the opposite party and forms a board to examine the opposition.[7]
- Compulsory licensing: under Section 84 of the Patents Act, 1970[8], the controller has the power to grant the compulsory license in the conditions when the patentee is not able to satisfy the reasonable needs of the public or the price of a patented invention is not reasonable or if it is not worked in the country.[9] Provided that in India any person can apply for the compulsory license only after three years of the grant of patent. According to Section 146 [10]of the act, The controller has the power to require and publish information regarding the extent of commercial working of the patent in India.[11]
- Patent validity: According to Section 13(4) of the Patents Act[12] expressly provides that the validity of the patent is not guaranteed by the grant of the patent hence there is no presumption as to the validity of the patent which vests the burden of proof on the patentee. This discourages patent trolling.[13]
- Intellectual Property Appellate Board:specialized boards like the Intellectual Property Appellate Board (IPAB) are constituted to resolve disputes relating to intellectual property. This also helps in reducing the litigation costs for small companies.
EUROPEAN FRAMEWORK
The patent trolls are a menace for every country but with strict laws, they can be put under control, this has been proved by Europe. Here are a few points through which Europe has tried to control the patent trolls:
- Centralized Office: All the countries of Europe have a single patent system which has a centralized office named the European Patent Office (EPO). The patents granted by this office are valid across all the countries of Europe. But the adjudication of matters is still nationalized which means that patents are territorial. if a patent infringement is upheld by the Court of one nation, this does not mean that the same patent will be automatically held infringed in other European nations. This is a major disincentive for patent trolls that intend to profit from a patent that has been working in various countries.[14]
- Cheaper Cost Of Litigation: The higher cost of litigation often harms the smaller companies and they agree to pay huge settlement amounts, so the lower cost of litigation is helpful for them. The damages awarded in these cases are also comparatively lower in Europe than in countries like the USA[15].
- Prohibition Of Contingency Fee: A contingency fee is a fee for legal services where the lawyer receives a percentage of monetary compensation awarded to the client when they win or settle a case. The prohibition of contingency fees helps reduce frivolous litigations[16].
CONCLUSION
The patent troll is rising with the advancement of time and we need to take more strict and diversified steps to ensure that the problem is under control. Europe has managed to effectively control the spreading of the cases of patent trolling through stricter laws and policies but still, there are areas of improvement. India, on the other hand, has also tried to curb the menace of patent trolls but it needs to learn from the European framework.
When both the frameworks are compared we find that both the frameworks lack a clear and precise definition of patent trolling, however, the Indian framework does not support the options of appropriate remedies, also we should improve in the area of low-cost litigation, a unified patent office. In the end, we can conclude that both systems need better legal provisions which support innovation and research and at the same time protect the interest of innocent businesses.
Author(s) Name: Swayam Nigam (Rani Durgawati University, Jabalpur (MP))
References:
[1] Anna Mayergoyz, ‘Lessons from Europe on How to Tame U.S. Patent Trolls’, Cornell international Law Journal 42(2) (2009): 241-242
[2] Erik Gregersen,‘Patent Troll’(Britannica money.com ) <https://www.britannica.com/money/patent-troll > accessed on 09 October 2023
[3] Upcounsel.com, ‘patent troll everything you need to know’ < https://www.upcounsel.com/patent-troll> accessed on 25 September 2023
[4] Adam Hayes, ‘patent troll’ (10 June 2022) Investopedia <https://www.investopedia.com/terms/p/patent-troll.asp> accessed on 25 September 2023
[5] The Patents Act 1970
[6] The Patents Act 1970, s 25(2)
[7] The Patents Act 1970, s 25(2)
[8] The Patents Act 1970, s 84
[9] The Patents Act 1970, s 84
[10] The Patents Act 1970, s 146
[11] The Patents Act 1970, s 146
[12] The Patents Act 1970, s 13(4)
[13] Dr. Monica Raje “patent trolls an Indian perspective “ Chanakya National Law University E-Journal Of Academic Innovation And Research In Intellectual Property Assets 1(01) (December 2020) 284-285
[14] Ashutosh Jha, “PATENT TROLLING: COMPARATIVE ANALYSIS OF INDIAN & EUROPEAN FRAMEWORKS” Journal of Legal Research and Juridical Sciences 2(3) (2022) 262
[15] ibid
[16] “Contingency Fees” (Cornel Law School Legal Information Institute, 2022) <https://www.law.cornell.edu/wex/contingency_fee> accessed 27 September 2023
