Legal Research On The Problem Of "Patent Troll"

In the time of knowledge and information leading the development, intellect property has become national strategic resource, so intellect property strategy is upgraded to national strategy now, and the appeal to strengthen the protection of intellect property is louder and louder around the whole world. Patent right, as one of important subsidiary rights of intellect property, it relates to technology innovation and marketing competition closely. Patent right protects inventive achievement via disclosure, and entitles legal monopoly in certain period, which encourages innovation, promotes scientific technology and stimulate social economy, as so to balance the interests between patent owner and society. From 20 th century, pro-patent policy, motivating innovation, emerges in some developed countries and areas, for sake of recovering overall economy. Consequently, patent market using patent technology as transact subject penetrates rapidly into commercial world, and manages to change patent into money instantly, as well as make technology commercialization. In pursuit of maximum interest, Patent Troll is produced, which does not contain any patent technology, but takes advantage of patent infringement litigation to threaten some enterprises who utilize its patents without authorization, and forces the enterprises to pay substantial amount of patent royalties, damage compensation fee or reconciliation expenses. Most scholars, both from theoretical and substantive industry, hold the opinion that Patent Troll disrupts normal market order, inhibits innovation, wastes society resource, damages consumer’s benefits.However, every coin has two sides, we should adopt an objective and rational attitude to the phenomenon of ‘Patent Troll’, this is the author’s assertion in this essay. Because, to some extent, Patent Troll can stimulate patent transaction, help enterprise enhance the sense of intellectual property right, and etc.,In order to obtain more comprehensive and neutral judgment of Patent Troll, I will sort out the related questions with Patent Troll in details, which lead to the point that it is the combination of patent system and market, so we should treat it objectively, no matter positive or passive. This essay takes the perspective of “Patent Troll” harmfulness as argument, analyzes litigation of Patent Troll’and the solutions of different countries when it happened, so that our country can learn some lessons, especially how to complete our legal system about it, before it haven’t caused serious influence yet. Four chapters are included:ChapterⅠOverview about Patent Troll. The definition, characteristics, types, as well as the difference and the relationship of concerning notions are illustrated, which would help readers be acquainted with Patent Troll at the first stage, following by its operation model introduction, the analysis of patent layout, and patent permission in details.ChapterⅡThe cause factors of Patent Troll and legal analysis. This part begins with the background of presence, then explores its cause factors in the areas of policy, law and economy, finally, ends up with the relationships between Patent Troll and patent institution, patent abuse, as well as monopoly.ChapterⅢDetailed discussion on litigation and influence of Patent Troll. The litigation will be emphasized, and adoptable strategies in lawsuits will be involved, such as prohibition strategy, the calculation formula of compensation for damage, custom border strategy. The positive and negative influence to innovation, market and enterprise is analyzed comprehensively in this part.ChapterⅣEnlightenment of Patent Trolls for our country. Using comparison method, other countries’ various strategies confronting with Patent Troll is concluded from aspects as national strategy, law institution, judicial administration, and so on. Analyzing actual effects to our country and absorbing the feasible experience, our own solutions, especially to law system completion, will be put forwarded, as a conclusion.