The Issue of Patent Trolls – Protection Strategies

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Margareta Ydreskog of SAAB, joins Pharma IQ to discuss the challenges and recent advances of intellectual property rights in the Nordic region.

Pharma IQ: Whilst researching for this year's conference, we discovered that patent trolls are still a key concern, why do you think these provide an ongoing threat and why are companies struggling to come up with a permanent and effective strategy to protect their patents against them?

M Ydreskog: I do not share the view that companies are struggling to come up with an effective strategy to protect their patents against trolls, what companies are struggling to come up with is the effective strategy for reducing the risk that trolls can present when it comes to a companies ability to deliver products and services.

I believe that it is important to distinguish the troll activities from positive trends that we are seeing within Open Innovation; where we see a variety of entity contributing according to their prerequisites and abilities in a collaborative work that in the end will result in new products and services. In such a situation, there may very well be participation of non-practicing entities but in an effort to accelerate development and access to new products. A new technology may be developed in a smaller entity that focuses their business on developing new technology; the technology may then be transferred to other companies that industrialize the new technology.

Trolls are companies that have no intention of industrializing their technology or in a positive way contribute to such industrialization. Instead of contributing to development of new products and services, they retroactively try to impose their patents. If they own an existing patent covering technology in these products and services, this is of course in correspondence within their legal rights. The problem for other companies is that the troll’s activities lies outside of the sphere that can be considered as normal competitive intelligence for a company – staying informed regarding activities and rights of competitors and also keeping up to date of the developments within the relevant technical field. Thus; even though a patent may have been publicly available for a number of years, the producing company is ignorant of this and have not benefited from the information in their development work. Furthermore identification of the troll patent in a company’s assessment of commercial risks is usually far-fetched. In short, it seems as if the troll use of the patent system is rather one-sided where they are demanding all the benefits without actually providing a corresponding contribution to the state of the art.

Pharma IQ: Do you think patent pools or multi-party licensing agreements provide an effective mechanism for preventing blocking patents?

M Ydreskog: Patent pools or multi-party licensing agreements are keys to form common standards within specific technical fields and the existence of standards is one way to try to work around the issue of blocking patents. I a way, it all depends on who the owner of the blocking patent is and what their commercial raison d’être is.

Pharma IQ: What tips can you share for those looking to streamline their patent filing process?

M Ydreskog: In streamlining patent filing, it is important to understand the commercial use of the knowledge assets and base any filing strategy on your business strategies. The patent drafting and filing is, at least in some fields, a highly repetitive task even though the technical content varies. I believe that it is important to see patent filing as this repetitive task and not as a creational work. This will enable you to be more clear on the investment that you are willing to make in the patent filing process and include this in your streamlining process.

Pharma IQ: In your session at the conference you are talking about ‘Using IP as a Tool to Support Business Strategies’, why do you think this should be such an essential area of focus for companies? And what are the most effective practices in your experience?

M Ydreskog: Where we are at, our IP is a lot more than just our patent portfolio. I believe that it is essential for every company to understand what type of IP they have in their business, how this is protected both in the contractual business relation and outside of this. With a good understanding of your company’s intellectual property assets, you may evolve the business models; vice versa out-going from your company’s business models you may want to change your approach on how to use intellectual property rights to protect your intellectual property assets. Perhaps a better title of my session would have included something about understanding your IP. However, I hope to be able to go deeper into the subject during my session at the conference. I will also look into some different practices and try to look at how the intellectual assets need to be handled differently depending on your business models and strategies. However, I should say that I will only look at this from a technical point of view. What I will be addressing is intellectual property in the form of technical knowledge assets.

Contributor:   Helen Winsor

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