Patents

3The Judiciarization of Patents

3.1. Introduction

One of the common critiques directed at the patent system is the fact that there is a discrepancy between the compensation that a patent holder can obtain by validating his/her patent and the social contribution generated by the activities of research and development that led to the issuing of the patent. The debate especially focuses on antitrust and contractual limits which patent owners must deal with to defend or assert their titles. This debate comes on the heels of what some describe as the “outbreak of the patent wars” during the last decade that changed the landscape of patent litigation¹.

More specifically, two types of litigation attract more attention because they are indicative of the inherent limits of the patent system that were outlined in Chapter 1. On the one hand (section 3.2), there are infringement disputes initiated by entities commonly known as “patent trolls”. These disputes highlight how much more uncertain intellectual property conferred through patents is, compared to other types of property, starting with land ownership. These disputes can be seen as the inevitable consequence of the inherent problem of delimiting patents. On the other hand (section 3.3), there are legal actions concerning the abuse of a dominant position filed against firms that hold standard essential patents. These disputes relate specifically to the market power conferred by patents ex post in the goal of promoting the innovation ...