It’s been a busy two weeks in Asia. First, the
IP Office of Singapore hosted its IP Week featuring its Global
Forum on Intellectual Property, while this week a good part of
the Managing IP team is in Shanghai for the Global
IP & Innovation Summit. Both events feature great
speakers from all over the world, bringing updates and analysis
of the important legal developments in their jurisdictions,
with a lot of discussions about NPEs and patent trolls.
Though some argue that the patent troll phenomenon
is largely a US issue due to unique features of that legal
system, the topic is still very popular on this side of the
globe among both multinational and domestic Asian companies.
This is understandable; many Asian companies are looking to
expand to the US and EU markets, while those already doing
business globally must deal with the problem. Simon Choi, head
of legal at China-based TCL Multimedia, the third largest
flat-screen television brand in the world, said today in
Shanghai that large companies such as his have to deal with
patent threats from many different types of plaintiffs,
including NPEs. While most lawsuits are filed in the US and
Europe, he said that he is beginning to see some filed in Japan
and Korea as well.
In addition to
talk about the threats posed by patent trolls, there was
discussion of solutions as well. Acting USPTO director Teresa
Stanek Rea (left), who spoke at both events, highlighted recent
developments in the US. Along with promising initiatives such
Global Dossier, which seeks to centralise IP prosecution
information among the IP5, she pointed to the Obama
proposals to combat abusive patent litigation.
Of course, the concern with anti-troll legislation is that
it may end up hurting entities that are not trolls. At the
Global Forum on IP in Singapore last week, Marshall Phelps of
IPXI expressed concern about some of the proposed anti-troll
legislation, especially those that focus on the non-practising
aspects of certain entities. Phelps pointed out that companies
such as Qualcomm that simply design chips, as well as prominent
research universities such as Stanford and MIT, are NPEs that
may be caught by some of the legislation.
Former USTPO head David Kappos made a similar comment about
those who he describe as "very smart people who question the
fundamental necessity of the patent system", who use the most
abusive patenting practices as evidence that the entire system
is broken. Kappos warned that it may be dangerous to make big
dramatic changes to a system that he says has been responsible
for the tremendous amount of innovation coming out of the
Phelps suggested that one very simple way to deal with
patent trolls is to increase patent quality, which makes a lot
of sense; a lawsuit enforcing a strong and legitimate patent is
not considered patent trolling.
Is this enough? Can the trolling problem be largely dealt
with just by addressing any patent quality issues we may have?
Or are other proposals, such as those made by the Obama
administration, needed? Furthermore, to avoid the problem of
hamstringing "good" NPEs such as universities and research
laboratories, can the problem be addressed by only using
proposals that do not revolve around whether the entity is
actually practising, such as awarding fees and costs to winning
defendants in patent suits?
What do you think? And of course, if you don’t
think patent trolls are a problem at all, we would love to hear
your thoughts on the issue.