July 29, 2025 by Surbhi Rai
"Patent troll" is an informal term used to describe non-practicing entities (NPEs) — individuals or companies that do not make, use, or sell products or services based on their patents, but rather enforce patents solely to extract licensing fees or litigation settlements.
While asserting patent rights is legally permissible, the troll model often involves:
Asserting vague or overly broad patents
Targeting small businesses or startups unlikely to afford litigation
Filing suits in jurisdictions known for plaintiff-friendly rulings
Demanding settlements below the cost of defense
However, under Indian jurisprudence:
Misuse of patent rights can be challenged under Section 146 (working statement), Section 84 (compulsory licensing), and Section 140 (restrictive license conditions)
Defensive strategies include revocation under Section 64, pre-grant/post-grant oppositions, and compulsory licensing
| Tactic | Explanation |
|---|---|
| Blanket Licensing Threat Letters | Sending mass notices alleging infringement, demanding licensing fees |
| Forum Shopping | Filing lawsuits in favorable jurisdictions (e.g., Eastern District of Texas in the US) |
| Buying Dormant Patents | Acquiring vague, expired, or dormant patents and reviving them |
| Suing SMEs and Startups | Targeting weaker players who prefer to settle |
| Asserting Poorly Drafted Patents | Using ambiguous language to maximize coverage |
| Section | Purpose |
|---|---|
| Section 64 | Grounds for patent revocation – lack of novelty, inventive step, insufficient disclosure, etc. |
| Section 84 | Compulsory licensing if the patent is not worked in India |
| Section 146(2) | Requires patentee to file Form 27 (statement of working of patent) – inaction can weaken their case |
| Section 140 | Prevents coercive or anti-competitive license conditions |
| Section 107A | Safe harbor for research, experimentation, and regulatory submissions |
Microsoft was ordered to pay $290 million for patent infringement, highlighting the high cost of weak defenses.
The U.S. Supreme Court ruled that NPEs are not entitled to automatic injunctions, thereby weakening the patent troll model.
The Delhi High Court evaluated FRAND licensing obligations and abuse of dominant position under the Competition Act, recognizing the interplay between IP rights and competition law.
| Risk | Impact on Business |
|---|---|
| Licensing Demands | Costly settlements or diversion of legal budget |
| Market Entry Barrier | Fear of litigation hampers global expansion |
| R&D Slowdown | Distracts from core innovation due to compliance overhead |
| Investment Deterrence | Investors avoid startups facing IP litigation |
| Supply Chain Impact | OEMs or distributors may stop dealing due to IP disputes |
Before launching any product, conduct patent clearance searches to ensure you’re not infringing any existing patents.
Publishing technical solutions (even if not patented) puts them in the public domain, blocking trolls from patenting them later.
Several jurisdictions now offer IP litigation insurance to cover the costs of defending against frivolous suits.
Organizations like LOT Network and Unified Patents help members protect themselves against NPE litigation.
Showing that your patent is "worked" in India strengthens your enforcement and prevents compulsory licensing or revocation.
India does not yet face large-scale troll litigation, primarily due to:
Lower enforceability of software patents (due to Section 3(k))
Mandatory working disclosures (Form 27)
Fewer automatic injunctions
However, with increased foreign filings and adoption of AI/IoT/software-heavy innovations, Indian innovators must be proactive.
| Aspect | Details |
|---|---|
| Legal Definition | Non-practicing entity enforcing patents for licensing profit |
| Target Victims | Startups, SMEs, SaaS firms, device makers |
| Typical Domains | Software, telecom, e-commerce |
| Global Problem? | High in US, moderate in EU, emerging in India |
| Remedies in India | Section 64 (revocation), Section 84 (compulsory licensing), Competition Act |
Don’t just react to threats—design a proactive IP strategy:
File patents only with strong novelty and enablement
Avoid ambiguous or overly broad claim language
Maintain documentation for each innovation decision
If approached by a suspected troll, engage IP counsel immediately—do not respond without legal advice
Don't Feed the Trolls—Fight Strategically
Patent trolls exploit the uncertainty of patent law and the high cost of defense. But with strategic foresight, proper IP due diligence, and legal safeguards, innovators can stay protected.
If you're a startup founder, tech company, or manufacturer, now is the time to audit your IP exposure, strengthen your defenses, and ensure you're not an easy target.
Remember: The best offense against a troll is a well-prepared defense.
Q1. Is patent trolling illegal in India?
👉 No, but misuse can be challenged under revocation, compulsory licensing, or competition law provisions.
Q2. Are software patents enforceable in India?
👉 Only if they show technical effect. Abstract software or business methods are excluded under Section 3(k).
Q3. Can startups be sued by trolls?
👉 Yes, especially if the product has global reach or enters markets like the US.
Q4. How can I check if my product is troll-proof?
👉 Get a Freedom-to-Operate (FTO) opinion before market launch.
Q5. Should I pay or fight a troll demand?
👉 Always assess the strength of the claim with a patent attorney. Many troll patents are weak or revocable.Would you like a visual infographic, legal notice template, or Form 27 guidance to accompany this article?