Definition and typical characteristics of patent trolls A patent troll is a patent holder who primarily uses his patents to sue other companies for alleged patent infringements or to enforce license payments without actually using the patented technology productively or manufacturing his own products. Typically, patent trolls acquire broad or fundamental patents – often in large numbers and sometimes with questionable validity – in order to then sue companies that are commercially successful.

Legal basis and potential for abuse In legal terms, patent trolls generally operate within the rights to which they are entitled under the Patent Act. According to Section 9 of the German Patent Act (PatG), a patent grants its owner the exclusive right to commercially exploit the patented invention and to exclude others from using it. In principle, this also makes it possible to take action against patent infringements by means of lawsuits and license claims. However, this becomes problematic if these rights are misused in order to gain unjustified economic advantages.

Prohibition of abuse in competition and antitrust law Although patent holders have extensive rights, the procedure must not violate competition or antitrust regulations. For example, the systematic approach of a patent troll, particularly in the case of standard essential patents, could violate so-called FRAND conditions (Fair, Reasonable and Non-Discriminatory), which are required under antitrust law. In the “Huawei vs. ZTE” case, the ECJ formulated corresponding requirements that patent holders must fulfill in the case of standard-essential patents in order to prevent abuse claims.

Response options for affected companies Companies that are confronted with patent trolls have various legal defense strategies. These include, in particular, challenging the validity of the patent in nullity proceedings before the Federal Patent Court (BPatG). In addition, it is also possible to submit a protective brief to the courts in order to prevent the threat of a preliminary injunction. These protective briefs make it possible to present your own point of view at an early stage and prevent unilateral court decisions without a hearing.

International characteristics and comparison with the USA The phenomenon of patent trolling is particularly widespread in the USA, where high damages and legal cost regulations favor such practices. In Europe, and Germany in particular, the attractiveness for patent trolls is comparatively lower due to other cost regulations, the obligation to pay fees for patents and lower damages, but there are still patent exploitation companies in this country that pursue similar strategies.

Strategies for preventing and dealing with patent trolls Companies should proactively maintain patent portfolios in order to reduce the risk of being successfully sued by patent trolls. In addition to registering relevant patents themselves, this also means continuous monitoring of third-party patent applications and preventive searches in order to be able to react at an early stage. Strategic cooperation and joint defense strategies within the industry can also be effective measures.

Conclusion on the legal assessment of patent trolls In summary, patent trolls operate in a field of tension between legitimate rights under patent law and the potentially abusive use of these rights. Although patent trolls are formally allowed to act, there are legal barriers, particularly in competition and antitrust law. Effective defence strategies and preventive measures are essential to minimize the risks posed by patent trolls.