|Will IP2I get the Commission to deal with Europe's|
emerging patent troll problem?
No surprise, that a new industry body called IP2Innovate has recently launched and called for the European Commission to take concrete action to prevent abuses from patent trolls (see their position paper here). IP2Innovate is a coalition of small and large innovative companies, including SAP, Daimler, Intel, Adidas, Google and Spotify, who
"have directly experienced patent assertion entities that are adept at exploiting the rigidities of Europe’s patent systems on automatic permanent injunctions, inadequate fee-shifting and poor quality patents."IP2Innovate says that they are bringing together policy makers and the legal profession to hear the inside story of abusive patent lawsuits and its effects on innovation in order to work towards a robust, balanced and flexible legal system free from market-skewing patent troll attacks.
|Vice President Andrus Ansip|
(Digital Single Market)
But Andrus Ansip, Vice President for the Digital Single Market, disagrees that new action is needed as the UPC already provides safeguards. In a letter to IP2Innovate (responding to this letter), Ansip accepts that
"it is true that the phenomenon is also increasing on this side of the Atlantic and therefore should indeed be fully monitored".But he then points to four reasons why the UPC already safeguards against patent troll abuses:
- The EPO opposition procedure to knock out bad patents - European patents and unitary patents.
- The proliferation of judicial discretion in the UPC Agreement which allows judges to have the discretion to weigh up the interests of parties before granting an injunction.
- The CJEU's jurisprudence to prevent all patentees, including SEP holders from abusing injunctions.
- The fact that UPC decisions will be publicly accessible.
"The UPC Agreement provides for safeguards against ‘patent trolls’. No automatic injunctions shall be granted: the UPC has the discretion to weigh the parties’ interests and to take into account the potential harm from the grant/refusal of the injunction."Of course, such assurances are not particularly comforting given the Rules of Procedure's emphasis on judicial discretion (and despite statements at conferences that the UPC judges will rarely bifurcate). These issues have been raised previously in several of IPKat posts (see, e.g., AmeriKat post here) and have been enjoyably summarized in the IP2Innovate's video below:
"investigate the scale of the problem to better appreciate the risks to business and innovation and take steps to protect European innovators. 80 per cent of lawsuits filed outside the US by patent assertion entities happen in Europe. The majority have been filed in Germany in the past two years."
But the question is will Europe learn from the US experience and listen? Or will they sit back and watch what happens?