earticle

영어

(1) Patent troll refers to (2) non-practicing entities that (3) stack up patents or buy patent rights from other patent right holders to create a patent wall (4) with which they claim excessive license fee or compensation for damages against companies or exercise patent rights to file infringement litigation. Trolls have both sides of coins and bring positive effect and negative effect. There are many controversial issues about trolls. This Paper describes what are patent trolls and how to regulate patent trolls. In order to solve problems of patent trolls I'll examine the U.S approaches and then research the regulation tools and strategies for the patent troll issues in Korea. I'll suggest some improvement measurements for the legal framework and policy for example restriction on joinder or injunction. There is discussion about restricting the injunction, the best weapon of patent trolls applying the four test of eBay case. According to the principles of equity admitting the preliminary (or permanent) injunction should be determined by the following four elements: (1) whether the damage causes irreparable harm or not, (2) whether there are other adequate remedies or not, (3) considering balance of hardship between the parties, and (4) the injunction causes harm to public interest. This is similar to the provision of preliminary injunction requirements (the Clause 2, Article 300 of Civil Execution Act). Therefore the bargaining power by automatical preliminary injunction can not be enjoined in Korea. The necessity of reserve to prevent significant damage or imminent danger should be strictly limited to forbid patent troll's abusive behaviors. There is an opinion which prevents trolls from exercising the injunction right and give them only monetary compensations. However, it is not consist with the nature of exclusive right. It is a better idea to use compulsive license in the Antitrust law rather than liability rule. The problems joining unrelated defendants in the same action are serious in patent trolls' litigation in U.S. Someone states that the defendants can not be joined simply because the same patent is infringed and the number of defendants per litigation should be limited. In patent litigations the American Invent Act is amended to prevent patent trolls' strategies of multiple defendants joinder. It amends the permissive joinder rule that defendants can not be joined if they don't arise out of the same facts and transactions. The court also prevents the trolls' joinder in some cases. I consider this is useful to remove trolls' negative effect of bad behaviors. If patent trolls' patents are the standard essential patents (SEPs), the injunction by trolls can be illegal in the Antitrust law because they break the commitment of FRAND (fair, reasonable and non-discriminatory) license term. It may be dominant position abuse if tolls refuse to license even to the willing licensee.