The Impact of “Patent Trolls” on Patent Law and the Legal Landscape of the United States

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In “An Industrial Property Rights Strategy for Europe“ the European Commission has mentioned “patent trolls” as a U.S. phenomenon connected with “poor quality [patent] rights.” However, the phenomenon cannot be explained solely by a poor level of work by the U.S. Patent and Trademark Office or a particular interpretation of patentability adopted by the Office and courts. The U.S. legal system has provided other incentives for trolls to flourish, such as an almost automatic award of injunctive relief and extremely high damages, which have been not only attractive rewards for trolls but also crucial tools in licensing negotiations. The article presents the phenomenon of patent trolls, explains their impact on the U.S. legal culture and surveys the effects that their activities have made on the U.S. patent law landscape; further, it suggests that through a number of recent precedents, courts have made important changes that will make it more difficult for trolls to succeed in the future. Therefore, it is not surprising that the filing of what appears to be the first troll-like suit in Europe coincides with U.S. court activity defeating the trolls. It will be interesting to observe whether European legal systems will offer as much fertile ground for the phenomenon as the U.S. system previously has.

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148 Pravnik 829 (2009) (in Czech).

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