Chapitre lobbying IP 2011
Attarça, M. and Corbel, P. « Le lobbying en réaction à des pratiques judiciaires : la réforme du droit des brevets aux Etats-Unis contre la menace des patent trolls » in V. de Beaufort et A. Masson, Lobbying et procès orchestrés, Larcier, June 2011, pp. 21-46
Introduction:
In this chapter, we will look at the collective lobbying strategies of American companies with regard to patent protection legislation in the United States. In the early 1980s, under pressure from business, the US federal government drew up a series of provisions that were largely favourable to inventors. To limit the risks of counterfeiting, the legislation provides for a specific jurisdiction for intellectual property cases. This jurisdiction seeks to protect inventors from potential counterfeiters. The so-called "pre-trial discovery" procedure allows the courts to suspend the exploitation of an allegedly infringing patent pending judgment. This suspension, based on presumptions, is intended to dissuade infringers. Judges thus take decisions that are more favourable to inventors against alleged infringers.
But this application of the law has encouraged the emergence of opportunistic companies that specialise in exploiting loopholes in patent law. Patent trolls are companies that acquire patent portfolios and threaten potential infringers with legal action. Since the economic consequences of such a threat can be dramatic, patent trolls are able to negotiate, often abusively, substantial compensation. An emblematic case of this type of approach is that of Research in Motion, which produces Blackberry, which was "forced" to pay more than 600 million dollars to a patent troll (NTP) to avoid the risk of a temporary suspension of the marketing of its famous smartphones in the United States.
The scale of the patent troll phenomenon and its impact on key sectors of the American economy (electronics, telephony, IT, banking) is gradually leading legislators to seek legal solutions to the problem. A lobby called the "Coalition for Patent Fairness" was created by the main players in the IT and electronics sectors with the aim of promoting a reform of the legislation limiting the excesses of patent trolls. For several years now, a legislative project known as the Patent Reform Act has been under discussion in the US Congress. Differences of interest between, on the one hand, the members of the Patent Fairness Coalition and, on the other, companies in the pharmaceutical and biotechnology sectors, grouped together in a competing coalition called the Coalition for 21st Century Patent Reform, are delaying the success of this project. Despite the support of the new Obama administration, the reform project, which initially went in the direction of the interests of the Coalition for Patent Fairness, was largely amended to take account of the interests of the pharmaceutical and biotechnology industries.
In addition to their lobbying activities, companies threatened by trolls are also trying to take legal action to limit the scope of the threats. In particular, eBay has succeeded in changing the case law concerning the suspension of exploitation of an infringing patent (eBay vs MercExchange).
To fully understand their scope, we feel it is important to place these attempts to amend legislation and case law in their historical context. We therefore begin by outlining the course of the changes studied, starting with the introduction of a system that was highly favourable to patent holders, continuing with the undesirable effects of this system and ending with the recent actions taken by companies to combat them.
We analyse this case through the interaction between regulation and court rulings, corporate strategy, and influence strategies. After recalling the essential elements of the strategies implemented by companies to influence regulation and case law, we use this case to examine the influence that the latter can have on certain aspects of company strategy. This will enable us to draw a number of lessons about how companies can organise themselves to manage cases of this type.