La relevancia del sistema jurídico: el caso de las patentes

Este trabajo analiza la relevancia de los patent trolls en Europa, en concreto en Gran Bretaña y estas son sus conclusiones comparativas con EE.UU.

it has been remarked that the European patent system may contain unique factors which are capable of ‘taming’ the patent trolls. For example, commentators note that a crucial factor concerns the fact that software and business method patents are much more difficult to obtain in Europe than the US. Also of importance is the fact that even within the European Patent Convention (EPC) system, patents ultimately turn into national rights, which must be enforced before national courts, something which substantially increases the costs and complexity of litigation when compared to the US jurisdiction. In this article we offer two additional factors present within the patent enforcement system in England and Wales which appear to mitigate, or ‘tame’, PAE behaviour. Firstly, the majority of patent cases that reach a judgment in the UK result in a ruling invalidating the patent. In cases involving PAEs during 2000-2008, only in one minor part of one case was a PAE patent found to be valid. The likelihood of a patent being declared invalid by the PHC is therefore high. Secondly, the costs regime in the legal system of England and Wales requires that the losing party pay the costs of the other side. Given the relatively high costs of patent suits before the PHC, this means that, even if its own costs are kept low, a PAE which loses a case may have to spend a substantial amount of money in order to pay the costs of the other side. When taken together, these two aspects discourage litigation by PAEs at the PHC. As a result, within the UK jurisdiction the problems associated with PAEs stifling innovation appear to be somewhat mitigated. This could help explain the low number of cases involving PAEs before the PHC - they account for less than 6% of all patent cases between 2000 and 2008.

Helmers, Christian and McDonagh, Luke, Trolls at the High Court? (September 23, 2012). LSE Legal Studies Working Paper No. 13/2012. Available at SSRN: http://ssrn.com/abstract=2154958