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11.13.15

New Academic Paper Explains Why Europe Has Virtually No Patent Trolls, Italian Patent Troll Sisvel Makes a Comeback, Patent Lawyers Belittle the Problem

Posted in America, Europe, Patents at 6:17 pm by Dr. Roy Schestowitz

Brian J. LovePhoto source: Brian J. Love’s official page

Summary: Analysis regarding patent trolls explains why Europe is so different from the United States and shows that academics think differently from patent lawyers, who basically monetise patent chaos

A new paper, titled “Patent Assertion Entities in Europe”, is about to be published and presented by Brian J. Love from Santa Clara University School of Law, Christian Helmers, Fabian Gaessler, and Maximilian Ernicke (the latter are associated with European universities or other institutions). It has already been mentioned by James Bessen (prolific and influential writer in this area [1, 2, 3, 4]) and opponents of software patents and patent trolls in Europe (to whom the EPO is increasingly helping). The paper’s asbstract is as follows: “This book chapter presents the findings of an empirical study of U.K. and German patent litigation involving patent assertion entities (PAEs). Overall, we find that PAEs account for roughly ten percent of patent suits filed in these countries during the time periods covered by our study: 2000-2013 for the UK and 2000-2008 for Germany. We also present a variety of additional data on the characteristics of European PAE suits and PAE-asserted patents and, finally, consider what our findings suggest are the most important reasons PAEs tend to avoid European courts. We conclude that, while many factors likely contribute to the relative scarcity of PAEs in Europe, the continent’s fee-shifting regimes stand out as a key deterrent to patent monetization.”

“We conclude that, while many factors likely contribute to the relative scarcity of PAEs in Europe, the continent’s fee-shifting regimes stand out as a key deterrent to patent monetization.”
      –Brian J. Love et al
We hope that decision-making politicians will pay attention to this; the patent maximalists from IAM (profiting from anarchic wars over patents) call the European patent troll Sisvel [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12] an “NPE”. Why are they calling a troll “NPE”? Because they try to legitimise the status quo and make what they profit a lot from seem acceptable. Sisvel is an Italian patent troll which we previously called the "European Patent Mafia" and a “German court awards injunction to [this troll] in first post-Huawei v ZTE standard essential patent decision,” according to this article. It’s based on a new announcement and it says: “A press release sent out this afternoon by German law firm Arnold Ruess reveals that its client Sisvel, the Italian patent licensing business, has secured a significant victory in the German courts. In the country’s first decision relating to FRAND and standards essential patents (SEPs) since the European Court of Justice’s judgment in the Huawei v ZTE case, Sisvel has been granted injunctions after the Düsseldorf Regional Court found that its patents had been infringed by Chinese company Haier.”

Meanwhile, other patent lawyers also try to defend patent trolls (or NPEs as the lawyers call them). Here is one who will be “speaking at the upcoming IAM Patent Law and Policy event on November 17, 2015, in Washington, DC.” She dismisses the labeling/stereotyping of many notorious entities, insisting that they are not patent trolls. To quote:

The “patent troll” narrative — fueled by anecdotal tales of mom-and-pop operations snared by fraudulent patent suits and the image of ugly green trolls paraded from the House floor to the White House – became the conventional wisdom on patents almost overnight. As readers of IPWatchdog know well, the only “data” offered to support the narrative were compiled from surveys with unscientific methodologies, nonrandomized survey bases and ill-defined notions of a “troll” that swept in universities, small inventors and anyone who owned a patent but didn’t manufacture, market and distribute the related product.

Well, that is by definition a patent troll. We have seen patent lawyers and trolls’ apologists insisting that even world’s largest patent troll (Intellectual Ventures) is not a patent troll. That was some days ago in Twitter; it happened as a result of this article of ours. Software patents boosters (profiteers or proponents who are patent lawyers) define “trolls” the way that suits their financial agenda and if terminology was left for them to decide on, no patent sharks and patent trolls would exist at all. They already distort popular languages and legal terminology with a lot of their euphemisms. Should we continue to let them have their way? Brian J. Love refers to patent trolls as “PAEs”, but why not use familiar (and popular) terms like “patent trolls”? Do these not sound professional enough? Will a peer review process suppress these?

“Software patents boosters (profiteers or proponents who are patent lawyers) define “trolls” the way that suits their financial agenda and if terminology was left for them to decide on, no patent sharks and patent trolls would exist at all.”The US has a very serious patent trolls problem. Public discourse including politicians and a top judge use the term “patent trolls”. Let’s insist on the use of this term. “Lawyers rank East Texas as worst jurisdiction in US,” wrote a patent trolls opposition group, “based on judges’ low impartiality scores.” The EFF hopes to shut it down, but patent lawyers just keep pretending that no such problem exist. They refuse to even use the term “patent trolls”.

GOP-centric sites are meanwhile trying to frame patent aggressors like Apple as the victims of patent trolls, with narratives like this one which says: “Remember how one small business spent $100,000 to tackle a single frivolous patent lawsuit? Imagine being Apple, which has to deal with over 800 of them every year. That means that if Apple fought every single one of those and won, it’d still spend close to $80 million. In fact, even paying a lowball settlement cost for such lawsuits would still end up costing millions. That’s millions of dollars that could be spent on jobs or research and development every year.”

The reality of the matter is, the principal victims of patent trolls are small businesses and groups of software developers, to whom an attack by one single troll can be the cause of bankruptcy. We shouldn’t let patent lawyers dominate the media and claim that patent trolls don’t exist and aren’t a problem of high severity. They most certainty are, and their weapon of choice is software patents.

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