Strange world of patents

Apparently two wrongs do make a right

The London School of Economics has just published some interesting research on patent litigation: Trolls at the High Court? (pdf)

In the abstract we can read:

Patent Assertion Entities (PAEs), often referred to as ‘patent trolls’[…] account for less than 6% of all patent cases. We suggest two reasons why the PHC does not provide a welcome venue for PAE litigation. Firstly, the majority of patent cases which reach a judgment in the UK result in a ruling invalidating the patent. Secondly, the costs regime in the legal system of England and Wales requires that the losing party pay the costs of the other side.

In summary they usually lose and its expensive

Hurrah for the UK legal system and yah-boo to patent trolls you might think? No, there’s another viewpoint.

So what did a legal commentator make of this analysis?

  • A proposal for higher barriers to patentability?
  • Simplification of the legal process?

Alas not, all of those would have deleterious effect on lawyers’ incomes. Surely not in a an example of blatant self-interest he proposes:

If patent litigation is costly and inconvenient enough, even the certainty that an action for infringement brought by a PAE would fail and that its patent would be revoked wouldn’t entirely negative the attraction of settling quickly and easily by paying a smallish royalty fee.”

That’s right, as the poor little troll spent the money on lawyers to get the paperwork and despite it being worthless, why not give it some money anyway?

Of course! Why didn’t I think of that?

And that’s without considering the effect of FRAND on open standards and open source software

UPDATE: In a strange co-incidence, just after writing the above I found an alternative view from the USA Congressional Research Service:An Overview of the “Patent Trolls” Debate (pdf).

“PAE activity could harm competition to the extent that operating companies use or ‘sponsor’ PAEs as a means of imposing costs on rivals and achieving other anticompetitive ends.”

— Gerry Gavigan, Chair, 26 October 2012

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