How the Unified Patent Court is likely to encourage patent trolls

Symbole copyrightStill at the project stage, the Unified Patent Court must ultimately be exclusively competent in matters of European patent and unitary European patent. On that principle, an agreement has been reached between all the Member States of the European Union with the exception of Spain and Poland, but the consistency of the project still has to be improved. That is why the States work on that project which has been approved since more than 40 years. They are currently working on the 15th amendment.


This amendment is particularly at the heart of the debate as it would encourage patent trolls, these companies whose main or sole activity is to sue other companies whether there has been patent infringement or not in order to obtain significant damages. For instance, in 2006, the company RIM which manufactures Blackberry telephones has paid $ 612.5 million to the company NTP in order to terminate a dispute filed with the US Courts.


Two provisions of the actual version of the agreement establishing the Unified Patent Court are problematic in that regard.


First, article 42 gives to the Unified Patent Court a discretionary power particularly important pertaining to the degree of patent infringement, which the Patentee needs to prove in order to obtain provisional measures. Thus, the different divisions of the Unified Patent Court could apply these criteria with more or less negligence. Therefore, it would be easy for all patent owners, including the patent trolls, to obtain such provisional measures even if these measures are not objectively justified.


Then, article 33 establishes a mechanism for the separation of actions. Thus, if disputes relating to patent infringement are filed with the local divisions of the Unified Patent Court, the counterclaims for revocation of the patent may be handled by the local division or referred back to the central division of the Unified Patent Court at the Court’s discretion. In the latter case, the actions become independent and the local Judge will not have to stay proceedings. It will then be possible to obtain convictions on infringement of invalidated patents!


The giants of innovation such as Google or Apple call for a radical change in the agreement which “enables to concentrate on innovation rather than on litigation”.


It will be interesting to see whether the next review of the agreement will include measures to combat patent trolls because the European institutions have never envisaged a system that encourages abusive procedures in patent matters.