Well picture this. You discover an idea. An idea that you know that it would change your life. An idea you know will make better of the world around you, or well, atleast your finances. Well, its good, not many people get stricken by great ideas, but still, there are just a few.
Let’s picture this idea as a sapling. You have just found a sapling for yourself.
Now here comes the best part. You are not satisfied with just getting an idea. You decide to implement this idea. You get this idea to work, to make you money, or whatever that is you are after. You invest time, money, your intelligence, intuition, and luck to get this idea into fruition. You want to start a company, the tree which your sapling becomes.
So, the sapling grows into a tree. A tree laden with fruits. Fruits that make you rich and famous, your life inspirational, and what you do valuable. So you are liking the scene. You got an idea, a dream, you nurtured it, protected it, the future generations would praise you for your entrepreuneural instincts, your intuition and perseverance. And then suddenly BAM! a hitherto unseen force start clobbering your beloved tree. You try to find out who it is and see that it’s a giant green troll. The troll keeps on hitting on the tree trunk and to jerk fruits of your tree. Your young tree could not bear the brunt of its attack. All its fruits, leaves fall down, its trunk gets crushed, its totally done…..all your dreams, hardwork, everything. Poof. Into smoke.
Now let me tell you a thing or two about our troll friend. He’s cunning, smart, and lazy. He’s the one who has the necessary proofs to claim that the idea, or (sapling in this case) is his. He knew it all along. And he has been watching you nurture that sapling of yours, watching it grow, waiting to strike just at the right time, when he could gobble up as much amount of your investment and success as possible. Every story needs a villain. And this is as villainous, disgusting and cowardly a character could get in your story.
So back in the real world, where ideas aren’t saplings or startup companies aren’t trees, these trolls have a very special term: Non practicing entities (NPEs) or in the popular word, patent trolls. They have patents to prove their right to your idea. They could threaten you with lawsuits or make hefty settlements that could just rip your company to pieces.
Patent trolls really are a pain. They increase the amount of redtape one has to go through for being creative. They increase the transactional costs incurred while developing technology, they make a mockery of the patent law and judicial system of a country. When the patent law of a country becomes efficient, patent trolls thrive. So really, it’s the good things, policies meant to reward the innovators and inventors, that is backfiring here.
The menace of patent troll vary with jurisdictions. This is an article in the national law review that elaborates on the varying amounts of patent troll activity across the globe. According to the article, patent troll activity is quite limited in India. So if you are a startup in India, chances are that you won’t be sued by a patent troll.
This is because that Indian patent law has made it impossible for trolls to survive in the country. Thanks to amendments like patent amendment act 2005, the patent troll business model does not work in India. First of all, acquiring patents would take time. That’s not just in India, anywhere, building a patent portfolio is not easy. It takes a lot of thought and knowledge.
Now coming to the second part. Patent system in India is completely transfixed on the idea that patented inventions must be used for the growth of industries in India, generate jobs, develop the economy. To ensure this, it has brought a few good measures too. I could name three, compulsory licenses, revocation due to non-working, and form 27.
If a person has a patent for an invention, and if the invention isn’t worked within 3 years of filing, any person can file for a compulsory license and snatch away the rights from the person to practise the invention more. Patent trolls need lots of time to work. Three years is too small a time for trolls to lay low waiting for a chance to strike some flourishing company. The presence of such clever laws in India keep trolls from building huge patent portfolios solely for the purpose of suing and not implementing.
After 2 years, if the invention has not been put to work even after compulsory licenses, the patent is revoked for non-working.
In spite of all this, the inventors are encouraged to submit a statement of working (form 27) after every financial year.
The Indian courts aren’t ideal places for patent trolls to survive. So if you are a troll suing a company in an Indian court, chances are that you might find a great deal of bias against you. Indian courts do not grant injunctions easily. It is quite true that an interlocutory injunction against the product can be obtained soon if the patent infringement is found. But to actually gain money as damages, it takes a great deal of time. And it simply is not profitable for a patent troll to spend that amount of time for litigation.
Author, Leo Paul Johnson is a patent engineer at IP ASTRA