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Trolls at the High Court?


Christian Helmers


London School of Economics & Political Science (LSE) - Centre for Economic Performance (CEP)

Luke McDonagh


Cardiff University

September 23, 2012

LSE Legal Studies Working Paper No. 13/2012

Abstract:     
This article investigates the phenomenon of litigation undertaken by Patent Assertion Entities (PAEs), often referred to as ‘patent trolls’, within the legal system of the Patents Court (PHC) of England and Wales during the period 2000-2008. Our analysis shows that patent suits involving PAEs at the PHC are rare – they account for less than 6% of all patent cases. We suggest two reasons why the PHC does not provide a welcome venue for PAE litigation. Firstly, the majority of patent cases which reach a judgment in the UK result in a ruling invalidating the patent. Secondly, the costs regime in the legal system of England and Wales requires that the losing party pay the costs of the other side. In other words, even if its own costs are kept low, a PAE which loses a case may have to spend a substantial amount of money in order to cover the costs of the other side. When taken together, it is likely that these two aspects discourage litigation by PAEs at the PHC, which accounts for the low volume of cases when compared with other jurisdictions such as the US. We also offer interesting insights to the wider debate concerning whether it is likely that in the near future there will be a similar increase in PAE litigation in Europe as has already occurred in the US over the last decade. This article also discusses potential implications for the design of the proposed European Unified Patent Court.

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Date posted: October 25, 2012 ; Last revised: July 18, 2013

Suggested Citation

Helmers, Christian and McDonagh, Luke, Trolls at the High Court? (September 23, 2012). LSE Legal Studies Working Paper No. 13/2012. Available at SSRN: http://ssrn.com/abstract=2154958 or http://dx.doi.org/10.2139/ssrn.2154958

Contact Information

Christian Helmers
London School of Economics & Political Science (LSE) - Centre for Economic Performance (CEP) ( email )
Houghton Street
London WC2A 2AE
United Kingdom
Luke McDonagh (Contact Author)
Cardiff University ( email )
Park Place
Cardiff, CF10 3AT
United Kingdom
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