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On sharks, trolls, and their patent prey—Unrealistic damage awards and firms’ strategies of “being infringed” |
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| Authors: | Markus Reitzig Joachim Henkel Christopher Heath |
| Institution: | a London Business School, Strategic and International Management, Sussex Place, Regent's Park, London NW1 4SA, UK b Dr. Theo Schöller Chair in Technology and Innovation Management, Technische Universität München, Arcisstr. 21, 80333 Munich/Germany c Center for Economic Policy Research (CEPR), London, UK d European Patent Office, Board of Appeals, Erhardtstrasse 27, 80331 Munich, Germany |
| Abstract: | Patent trolls (or sharks) are patent holding individuals or (often small) firms who trap R&D intensive manufacturers in patent infringement situations in order to receive damage awards for the illegitimate use of their technology. While of great concern to management, their existence and impact for both corporate decision makers and policy makers remains to be fully analyzed from an academic standpoint. In this paper we show why patent sharks can operate profitably, why they are of growing concern, how manufacturers can forearm themselves against them, and which issues policy makers need to address. To do so, we map international indemnification rules with strategic rationales of small patent-holding firms and large manufacturers within a theoretical model. Our central finding is that the courts’ unrealistic consideration of the trade-offs faced by inadvertent infringers is a central condition for sharks to operate profitably. |
| Keywords: | M00 M11 M21 K00 K11 K33 |
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