Berlin, 2 Oktober 2019
Das Patentrecht ist ein wesentlicher Eckpfeiler für Innovation und – damit verbunden – für nachhaltiges Wirtschaftswachstum. Es kann dieser Rolle allerdings nur gerecht werden, wenn es die Entwicklung und das Inverkehrbringen komplexer, multifunktionaler Hightech-Produkte wie Autos, Telefone und medizinische Geräte unterstützt. Dies tut das deutsche Patentrecht derzeit nicht! Hauptmangel: Unterlassungsklagen werden automatisch erlassen, ohne alternative, geeignetere Rechtsmittel zu prüfen. Diese Situation schadet der deutschen Industrie.
„Wir setzen uns gezielt für eine Anpassung des Patenrechts und die Einführung einer Verhältnismäßigkeitsprüfung beim patentrechtlichen Unterlassungsanspruch ein“, sagt Kevin Prey, Chairman von IP2Innovate und Director IP Policy & Strategic Transactions bei SAP.
Der Unterlassungsanspruch ist eine notwendige und maßgebliche Säule, um einen starken Patentschutz zu gewährleisten. Dieser kann sich jedoch in einigen Fällen als unverhältnismäßig erweisen: Beispielsweise wenn das Patent sich nur auf eine Komponente eines komplexen Gesamtprodukts mit tausenden patentierten Komponenten bezieht und deswegen ggf. ganze Produktreihen vom Markt genommen werden müssen.
„Die Androhung einer automatischen Unterlassungsverfügung und die fehlende Verhältnismäßigkeitsprüfung bedeuten, dass deutsche Unternehmen mit einem erheblichen wirtschaftlichen Risiko konfrontiert sind“, so Prey weiter. Gerade in einem Hochtechnologieland wie Deutschland sei dieses Thema für viele Unternehmen von hoher Relevanz. Kevin Prey: „Sogenannte „Patenttrolle“ nutzen die fehlende Verhältnismäßigkeitsprüfung gezielt aus, um überzogene Zahlungen von Unternehmen in Deutschland zu erhalten.“
Letztendlich entzieht diese Situation den Unternehmen erhebliche Finanzmittel, die für Forschung, Entwicklung und Innovationen nicht länger zur Verfügung stehen. Dies hat auch Auswirkungen auf Verbraucherinnen und Verbraucher. IP2Innovate sieht hier dringenden politischen Handlungsbedarf.
IP2Innovate ist ein branchenübergreifender Zusammenschluss von Unternehmen und Industrieverbänden, die sich gemeinsam für ein innovationsförderndes Patentrecht in Europa einsetzen.
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Brussels, 1 October 2019
Ahead of the parliamentary hearing of the EU Commissioner-designate for the Internal Market Sylvie Goulard, the cross-sector industry coalition IP2Innovate sent a letter to the Commissioner-designate urging her to take steps as part of her mission to bring balance to Europe’s patent system to ensure it supports the region’s digital growth ambitions and enhances competitiveness in critical technology sectors.
Commission President-elect Ursula von der Leyen in her mission letter to Goulard asked her to “take a close look at [EU’s] intellectual property regime to ensure that it is coherent, is fit for the digital age and supports our competitiveness”. According to IP2Innovate, an effective and balanced patent legal system is an important prerequisite for Europe to be able to compete globally in the next frontier of technologies, such as blockchain and artificial intelligence. Unfortunately, the experience of IP2Innovate member companies, and many other European innovators, is that Europe’s patent system presently lacks this necessary balance, making it harder for companies to scale up and bring new products to market rapidly.
“In the digital age, products are increasingly complex, often covered by thousands of patents, which make them constantly subject to patent disputes”, IP2Innovate said in its letter to the Commissioner-designate. “Because the practice of many European courts is to issue automatic injunctions upon a finding of infringement, without considering a remedy that could be more proportionate, an accidental infringement of just one patent among many others can result in removing from the market a product necessary to access digital goods or services”.
According to IP2Innovate, this situation makes Europe more and more attractive to Patent Assertion Entities (PAEs), also known as “patent trolls”, who buy up patents only to assert them against innovative companies, including SMEs, and extract high settlement. These entities increasingly target the ICT-industry, central to growth and innovation across many industries.
Under the leadership of Commissioner-designate Goulard, IP2Innovate calls on the European Commission to take concrete steps to bring greater balance to Europe’s patent legal system to support the region’s digital growth ambitions and secure its competitiveness in critical technology sectors.
Read the full letter here.
For further information, please contact:
Executive Director, IP2Innovate
Erlangen, 25 March 2019
In light of the considerable evidence that imbalances in Europe’s patent system are being increasingly exploited by Patent Assertion Entities (“PAEs”), to the detriment of digital innovation, the industry coalition IP2Innovate welcomes the fact that leading academics, practitioners and government officials came together to explore ways to ensure consideration of proportionality in the granting of patent remedies, as required by EU law.
The International Symposium “Enforcing Patents Smoothly – From Automatic Injunctions to Proportionate Remedies”, was hosted on 22 March by the Institute of Law and Technology of the Friedrich-Alexander-Universität Erlangen-Nürnberg. The conference looked at proportionate remedies as an alternative to granting automatic injunctions, which give undue leverage to PAEs. PAEs (also sometimes referred to as “Non-Practicing Entities” (“NPEs”) or “patent trolls”) are entities that don’t invent or innovate their own patents, but buy them for the sole purpose of making money via lawsuits, thus damaging innovation.
While the EU Intellectual Property Rights Enforcement Directive (IPRED) makes a clear case for proportionate and equitable remedies granted by courts, members of IP2Innovate are concerned that these requirements are not effectively applied in many Member States. In practice, upon a finding of patent infringement, courts generally grant an immediate permanent order to remove the product from the market, without considering whether an injunction is the most appropriate and proportionate remedy in each particular case.
This practice is increasingly concerning in times of digital transformation with more and more multi-feature, integrated products incorporating thousands of patents. The leverage obtained from the threat of an injunction on a complex product can greatly exceed the value of a patent covering a minor feature incorporated into that product. This has opened the field to PAEs, whose activity in Europe is on the rise, as documented in the recent report by Darts-ip.
Prof. Dr. Franz Hofmann, LL.M., Chair of Private Law, Intellectual Property
and Technology Law of the Friedrich-Alexander-Universität Erlangen-Nürnberg, the organizer of the Symposium, said: “In many EU Member States, injunctions are conceived as default remedies. Although patents are an important tool for innovation, granting an injunction irrespective of the particular facts of the case can lead to hardship. Automatic injunctions are not necessarily ‘fair and equitable’, as required by the EU’s Intellectual Property Rights Enforcement Directive”.
Kevin Prey, Chairman of IP2Innovate, said: “The threat of an immediate permanent injunction is a powerful weapon when wielded by PAEs, and its availability in certain Member States is driving increased activity in Europe. We welcome the intensified debate on proportionate remedies and hope it will lead to a more effective application of the proportionality principle to patent cases across European countries, as required by EU law”.
For further information, please contact:
Executive Director, IP2Innovate
Brussels, 5 December 2018
On the first anniversary of the release of the EU IP Package, 34 companies and associations from various sectors called on the European Commission to support the application of the proportionality principle to patent enforcement through a new set of guidelines. These innovators request that the guidelines contain a list of factors that courts in all Member States should consider in deciding what remedies to grant upon a finding of patent infringement.
While the EU IPR Enforcement Directive (IPRED) requires that remedies granted by courts must be equitable and proportionate, “these requirements are not effectively applied in practice in many Member States”, the group said in a letter to Commission Vice-President Ansip. “Upon a finding of patent infringement, courts generally grant an immediate permanent order to remove the product from the market, without considering whether an injunction is the most appropriate and proportionate remedy in each particular case”.
The signatories of the letter are concerned that the issuance of an injunction without consideration of proportionality injects a lack of balance into the European patent system. “The leverage obtained from the threat of an injunction on a complex product can greatly exceed the value of a patent covering a minor feature incorporated into that product, especially when the patent owner’s true goal is to receive royalties, not to remove a product from the market. Such practices can discourage R&D investments, slow innovation in Europe, and are harmful to consumers”. As such, an immediate permanent injunction is a powerful weapon when wielded by Patent Assertion Entities (PAEs), and its availability is driving the growth of PAEs in Europe.
The Commission stated in its November 2017 IP Package that it would issue targeted guidelines on specific IPRED issues by 2019, building on its work with Member States’ experts and judges, with a view to improving the system of judicial enforcement in the EU.
Notes to editors:
List of signatories of the industry letter:
- adidas AG
- Bayerische Motoren Werke AG
- Bullitt Group Limited
- Computer & Communications Industry Association
- DENSO Corporation
- Deutsche Telekom AG
- European Semiconductor Industry Association
- Honda Motor
- HP Inc.
- Robert Bosch GmbH
- Samsung Electronics Co., Ltd.
- Sierra Wireless
- Telit Communications S.p.A
- u-blox AG
- Visteon Corporation
- Volkswagen AG
- Vrijscrift Foundation
For further information, please contact:
Executive Director, IP2Innovate
Brussels, 7 November 2018
As the European Commission will soon set out how the EU Single Market can be strengthened, 25 years after its establishment, IP2Innovate, a cross-industry coalition of small and large innovative companies, is calling for consistent and effective application of the EU IPR rules to patents in all EU countries, to the benefit of Europe’s innovators.
At present, innovation in the EU Single Market is being undermined because certain requirements of the EU Directive on IPR enforcement are not applied in practice to patents. While the Directive requires that remedies granted by courts must be proportionate to provide for safeguards against abuse, in many Member States upon a finding of patent infringement, courts generally issue an immediate permanent order to remove the product from the market, without considering whether an injunction is the most appropriate and proportionate remedy in each particular case. The threat of an automatic injunction without consideration of proportionality is a powerful weapon when wielded by patent assertion entities or “patent trolls” who seek to force settlements based on the damage that would result from an automatic injunction removing the accused product from the market. Patent trolls seek and obtain injunctions even when they make and sell no product, the patent covers only a trivial aspect of the accused product, or the patent’s validity is doubtful or not yet decided. Such practices discourage R&D investments, slow innovation in Europe, and are harmful to consumers.
In a recent letter to the European Commission and to EU Member States, IP2Innovate called upon Member States to work together with the Commission to exchange best practices in order to ensure a consistent and effective application of EU IPR rules in relation to patents to promote the integrity and smooth functioning of the Single Market and innovation and growth in Europe.
Patrick Oliver, Executive Director of IP2Innovate, said: “EU rules are not being effectively and consistently applied to patents in all EU countries. This undermines innovation in the EU Single Market and fosters abusive litigation practices by patent trolls against the very innovators that the patent system is supposed to support. We call on the European Commission to work with Member States to ensure EU rules are properly and effectively applied”.
Notes to editors
- IP2Innovate (IP2I) is a coalition of small and large companies that create innovative products and services in Europe and collectively hold thousands of European patents, as well as European industry groups that collectively represent 65 companies. IP2I members have directly experienced attacks by Patent Assertion Entities that are adept at exploiting the fact that EU IPR rules are not being properly and consistently applied. IP2Innovate’s mission is to work with policymakers to ensure EU IPR rules are effectively applied to all patents to ensure Europe’s patent eco-system supports innovation and economic growth for the benefit of society and consumers.
- Watch the video on Patent Assertion Entities, how they operate and how they damage innovation. PAEs do not innovate and do not create and sell new products. They are financial vehicles that buy up patents and profit from asserting these patents against operating companies. Their business model relies heavily on making threats to operating companies that must then choose to employ significant and financial resources to fight their claims or to settle them with payments or licenses dictated by PAEs. In pursuing this model, PAEs exploit Europe’s patent litigation system for their own financial gain at the expense of European innovation and digital economy.
- The key element of the EU’s IPR rules that are not being applied relates to Article 3(2) of the Directive on IPR enforcement of 2004 that requires that remedies granted by courts on the finding of infringement have to be proportionate. This requirement of proportionality is not effectively applied in practice as in many Member States, upon a finding of infringement, courts issue an immediate permanent order (an injunction) to remove the product from the market, without considering whether this order is the most appropriate and proportionate remedy in each particular case. The issuance an automatic injunction without consideration of proportionality (or the threat of an automatic injunction) is a powerful weapon in the hands of PAEs, and results in forcing operating companies to pay high settlement fees which are divorced from the value contributed by the patent.
- Following a call from the Member States to carry out an analysis on the state of enforcement and application of internal market rules, the European Commission is currently working on a Single Market Communication, planned for publication on 21 November 2018. The Communication will assess the remaining barriers to the Single Market, take stock of the achievements to date and suggest options for future policy action.
- For further information, please contact:
Patrick Oliver, Executive Director, IP2Innovate Email: email@example.com