A Patent Troll uses a Patent as a lawful weapon, rather than making new products or evolving with new ideas. Patent trolls are individuals or companies that are in the business of litigations. As the patent offices across the world are seeing a large number of patent applications, many times patent offices do issue a patent for ideas that are not Novel or Radical -these patents have very broad applications in our day to day life and include common sense ideas. Patent trolls uses their patent titles to try to compel individuals, businesses and non-profits to pay them fees for use of ordinary items of daily uses like office equipment, printers, Wi-Fi routers and theses days a new trend of threatening Mobile Phone App developers is also in business.
Patent Trolling from Indian Perspective
Indian patent system has seen a paradigm shift where it has transformed itself from a system where monopoly rights over intellectual property rights are balanced against the public interest. There have been many instances where the Indian courts have sent a strong message that any act of using the patents in negative sense will not be tolerated. Indian patent laws do not in specific prevent the patent trolls, however there are various provisions that significantly prohibit Non-Performing Entities or patent trolls.
Patent trolls maintains a bucket of patent till the technology matures and then starts various litigation against the users. Section 146 of Indian patent act ensures that patent(s) is commercially utilized or worked in India. If the patentee fails to submit the proof for the same the subject patent is made available to the public by invoking compulsory licensing for the same. The time frame as prescribed by the Indian patent act is not enough for the patent trolls to act since the time is not enough for patent troll to acquire the required patents and the technology is also not matured.
Section 146, patent Act
1."The Controller may, at any time during the continuance of the patent, by notice in writing, require a patentee or a licensee, exclusive or otherwise, to furnish to him within two months from the date of such notice or within such further time as the Controller may allow, such information or such periodical statements as to the extent to which the patented invention has been commercially worked in India as may be specified in the notice"3
2." Without prejudice to the provisions of sub-section (1), every patentee and every licensee (whether exclusive or otherwise) shall furnish in such manner and form and at such intervals (not being less than six months) as may be prescribed statements as to the extent to which the patented invention has been worked on a commercial scale in India"
3. "The Controller may publish the information received by him under subsection (1) or sub-section (2) in such manner as may be prescribed."
Patent trolls utilizes the fact that the patent infringement cases could be extended over longer periods and results in substantial loss in production and revenue. It is due to the reason that patents are complex to understand, lack of technical knowledge may extend such periods to great extent. Section 115 of the patent act allows appointment of scientific advisers with deep technological knowledge for speedy trials. It also helps the courts to identify dubious patents and to revoke them.
Section 115 of Indian Patent Act
(1) "In any suit for infringement or in any proceeding before a court under this Act, the court may at any time, and whether or not an application has been made by any party for that purpose, appoint an independent scientific adviser, to assist the court or to inquire and report upon any such question of fact or of opinion (not involving a question of interpretation of law) as it may formulate for the purpose."
(2) "The remuneration of the scientific adviser shall be fixed by the court and shall include the costs of making a report and a proper daily fee for any day on which the scientific adviser may be required to attend before the court, and such remuneration shall be defrayed out of moneys provided by Parliament by law for the purpose."
Dubious patents are another favorite of patent troll, these are used by patent trolls to enter litigations. Indian patent system counters these kinds of patents with section 3(d). However, disagreement continues to rage over significant issues affecting rights holders, such as Section 3(d) of the Patent Act, which is unique to India. Section 3(d) makes it very difficult for the patent trolls to get dubious patents and of the Evergreening of the patents.
"the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine, or apparatus unless such known process results in a new product or employs at least one new reactant."
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