The good, the bad and the ugly–the future of patent assertion entities in Europe

Abstract

Most of the available evidence on patent assertion entities (PAEs) is coming from the United States, while little is known for Europe. The up-coming Unitary Patent (UP) and the Unified Patent Court (UPC) system are considered to be game-changing elements for strategic patent options and for patent assertion activity in Europe. Many patent practitioners are watching Europe as the future market place for patenting. PAE activity in Europe is increasing and one reason for this trend is that PAEs originating from the United States are becoming more active in Europe. In the future, fuzzy boundaries of patent claims in general and of software-related claims in particular, new combinations of technologies and enhanced interoperability under the schemes of Industry 4.0 and the Internet of Things could attract PAE activity in technological fields where it has not been seen before. Altogether, some of the features of the new UPC have the potential to play into the hands of PAEs in Europe. The future will much depend on the implementation of the new UPC system, how the different divisions of the court will establish case law decisions and how PAEs will make use of the new system. The intention of the article is to provide an overview of ongoing PAE activity in Europe and to assess the future strategic options of PAEs in Europe based on the design of the new UP and UPC system.