“Don’t negotiate with terrorists; patent trolls have done more damage to the United States economy than any domestic or foreign terrorist organization in history, every year.”- Drew Curtis
Patent trolls are organisations that attempt to obtain and enforce patents without actually using the claimed inventions. These trolls don’t really sell or produce the patents they buy or licence; instead, they merely take the royalties and licencing fees and use them to fund lawsuits for patent infringement. They are also called NPEs (Non-Performing Entities).
To put it another way, a patent troll is an organisation that has no intention of using a patent; the purpose is not production but it is of acquiring patents to gobble licence payments. There is no intention of product usage or sales. The main objective is to force third parties to purchase licences. In the matter of Spice Mobiles Ltd. v. Somasundaram Ramkumar, the Intellectual Property Appellate Board (IPAB) recently rendered a number of decisions on patent trolls, revoking a patent under Sections 57[5], 59[6], and 64(1)(e) & (f)[7]. In addition to rejecting the modification claims and ruling in favour of Spice Mobiles due to the absence of innovative step and originality, the IPAB also revoked the patent, assessed costs against the respondent for a frivolous submission, and cautioned the Controller General of Patents about patent trolls.
The major negative impact of patent trolls is not their non-practising status or the potential brittleness of their patent claims, but rather their ability to negotiate licence costs that are wildly out of proportion to their contribution to the claimed infringer’s product or service. The possibility of incurring large charges for licencing patents they were unaware of after the fact and the expense of increased attention for potentially issued competitor patents raise the costs and hazards of production.
There is no explicit legislation or provision to deal with patent trolls under the patent laws and regulations. However, it does stipulate that a patent grant must be used in India pursuant to Section 146 (1)[3] of the Patents Act, which expressly states that a patentee may be required to provide information regarding the length of time the patent has been used commercially in India, or whether the patent has been used commercially or not. However, compulsory licencing may be chosen in India if a patent is not utilised there for a period of three years.
The Patent (Amendment) Act of 2005 has retaliated against the problems sowed by patent trolls. The majority of the time, patent trolls can only have an impact on start-ups, small firms, and technology patents. The aforementioned law forbids software troll behaviour. Section 83(b), which stipulates that patents are not awarded only to allow patentees to enjoy a monopoly, it discusses the practice of abusing patent rights through patent trolls. The encouragement of technological innovation, technology transfer, and the avoidance of patent rights being abused to unnecessarily hinder global technological transfer are all included in clause (f).
The post-grant clause indicates that even after a patent has been granted, it may still be contested on a number of grounds, including Section 64 (1) (e), or lack of originality.
Section 84(1)(c) of the Patents Act of 1970 provides that if a patent is not being utilised commercially in India or even if it is not being exploited to its greatest or appropriate extent, then any person interested may make an application for the grant of compulsory licensing. As the reasonable demands of the public are not being met the patent grant can be revoked.
The awareness of the patent troll tactics that have emerged in the current patent system seems to be the outcome of judicial procedure and its adjudication in infringement cases. As things stand right now, policies like the domestic working and reasonable period requirements, the compulsory licencing and pre-grant opposition regime, and last but not least, the patentable subject matter, have helped to shield the Indian system from the patent troll issue that has been a problem in many other nations.
Let us pledge to fight against the patent trolls and protect the innovation of booming India.
Patent Trolls: The Indian perspective
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