IPEG recently picked up some interesting stats from the patent troll tracker (which themselves are worth a look) and asked whether 2008 will bring a boom in patent troll activity in Europe?
The team at IPEG are fantastic as is the blog. But with respect, I think not.
While patent ‘troll’ activity has certainly already been evident in Europe, it’s quite unlikely to become as popular as in the US.
Here are some reasons – what would you add?
- European countries allow the winning party in patent litigation to collect at least some of its legal fees from the losing party. The US only allows this in exceptional circumstances (basically due to very bad behaviour or, in some contexts, wilful infringement.) Thus, ‘trolls’ in the US have nothing to lose when it comes to attorney’s fees. (As long as they can keep their litigators in check.)
- The USA has an enormous industry in contingency patent litigation and Europe does not. So patent trolls in the US may have nothing (or relatively little) to lose at all, even as regards paying for their own lawyers.
- The USA has the chance at triple damages if wilful infringement of the patent is proven. This doesn’t exist in Europe.
So, in contrast to Europe, patent trolls in the US have everything to win and very little to lose. I have previously suggested a change in the award of attorney’s fees in the US here.