“The patent system was founded
on the premise that in exchange for
a full disclosure of their inventions,
inventors can be awarded a monopoly
for a limited period of time. This system
rewards inventors, by giving them a
limited period of exclusivity in which
to exploit commercially their inventions,
whilst providing sufficient technical
information to permit others to use
the invention once the monopoly has
expired, thereby encouraging
dissemination of useful technical
information and further innovation.”
11
Europe has historically been
less troubled by PAEs. The
requirement of most courts in
Europe that the loser pays the
winner’s costs has no doubt
deterred the type of frivolous
claims based on weak patents
often seen in the US. Also, the
granting of business method
and software patents (the PAE’s
weapon of choice) has been
more restricted in Europe than
in the US.
There has, however, recently
been some high profile PAE
activity in Europe. IPCom (a
company which acquired mobile
technology patents from Robert
Bosch GmbH) has sued several
companies, including Nokia, HTC
Corp., T-Mobile GmbH and
Apple for patent infringement in
Germany and the UK with mixed
success, while settling out of
court with other companies.
The German courts
frequently appear as
a popular forum for
organisations looking to
assert their patents. The
German system considers
infringement of a patent in
a district court in as little as
eight months, before validity
is considered separately
in a central Court in
Munich anywhere from
18 months to two years
later. This bifurcated system
allows for a quick finding of
infringement and is
favourable to organisations
seeking an injunction. The
risk to the defendant is that
a finding of invalidity only
comes after an injunction
has already been granted.
The threat of this “injunction
gap”, which could be in the
region of 10 to 16 months, is
often used to apply pressure
to the defendant to pay
licence fees to avoid the risk
of an injunction, regardless
of the strength of the patent
being asserted.
