| Summary: | 碩士 === 國立中正大學 === 財經法律學研究所 === 102 === To solve the problem of patent trolls is an important issue, due to it is violating the purpose of patent law. Patent trolls are persons or companies who obtain patent rights and enforces patent rights by accusing of others patent infringement in an attempt to collect licensing fees in the meantime they do not practice those patent rights. Patent trolls, also called non-practicing entities (NPEs) or patent assertion entities (PAEs). The main reason for the problem of patent trolls is that low quality of patent examination, so the most effective solution is to enhance the quality of patent examination, because it involves patent examination budget, it’s difficult to solve the problem of patent trolls immediately. Therefore, to prevent the patent trolls of the present stage effectively is that legislative amendments.
Leahy-Smith America Invents Act (AIA) amended the prior user defense that expanded 35 U.S.C. §273, previously limited to business method patents, to patents which in all technologies. The prior user defense is one of the restriction of exclusive right of patent. In present patent law, it is easier to claim the prior user defense, also easier to inhabit patent trolls.
The statute of prior user defense in our country is similar with U.S. patent law, there are some differences in prior user’s intention and such person has use the technology at least one year before filing date or the date on which the claimed invention was disclosed to the public in a manner that qualified for the exception from prior art under section 102(b). In my opinion, prior user defense should be bona fide user in our country.
To prevent patent troll, in addition to enhance the patent quality, legislative amendments is the most efficient and effecting measure.
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