September/October 2008 / Intellectual Property
Patent Trolls Look to Europe
The United States has been a more favorable environment for patent trolling than Europe, but according to the authors, that is changing. The U.S. Supreme Court recently rejected the “general rule that courts will issue permanent injunctions against patent infringement absent exceptional circumstances.” Partially becaue of trolls, the Court established a test to determine whether a patent injunction should be issued. The availability of permanent injunctions in the European courts now gives significant leverage to patent trolls operating there as compared to their counterparts in the United States.
In the twelve-month period following the Supreme Court’s decision, not one entity that was not practicing the invention obtained a permanent injunction after a finding of infringement, whereas injunctions continued to routinely issue in favor of practicing patentees.
By comparison, in Europe, permanent injunctions are now more accessible to non-practicing entities. Europe’s largest economy, Germany, which sees over 30 percent of all European patent cases, normally issues injunctions in all cases where infringement is found, without taking into account whether the patent owner is an entity practicing the invention. Conditions appear right for Germany to emerge as the next target of the patent trolls.