Lessons that Europe can learn from the US patent assertion entity phenomenon
273 - 302
Information & Communications Technology Law
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This paper investigates the patent assertion entities (PAEs) problem in Europe. First, it argues that PAEs should be not as active in Europe as it is in the USA simply because European inventors infringe less. They infringe less because there are fewer patents to infringe. PAEs, however, can still thrive in Europe. Using the example of the UK, this paper shows that PAEs visible activities are non-negligible even if they pale compare to the level of activities in the USA. Using the example of France, this paper shows that governments have not waited for PAEs to come their countries; some have taken steps to create their own governmentally sponsored PAE. Finally, this paper argues that the USA is trying to learn from the EU and bring fee-shifting to their system; fee shifting, in and of itself cannot solve the PAE problem. This paper also argues that the EU is taken on some of the problem as the USA and responding in similar ways with regard to injunctions; injunction remains an important part of the PAE arsenal; yet, the highest courts in both jurisdictions have made clear that infringing a patent does not automatically great a patent holder a right to exclude others. The paper concludes by discussing the Unitary Patent Court system and the impact it will have on PAE activities in Europe: some PAEs may benefit but most will still find Europe a hostile environment for their activities.