Report University of Maastricht "Proportionaliteit in het octrooirecht"

IP2Innovate

How to ensure the patent system in Europe best serves the innovation process has been a hotly debated topic for decades. In recent years lawmakers in Germany and in Brussels have started to realise that the old status quo – where patent courts hand out injunctions almost always automatically – doesn’t work in a world where advances in technology constantly bring more and more complex products to market, and where thousands of patents could possibly be relevant. It has become too easy for patent assertion entities (PAEs) to leverage the threat of automatic injunctions and disrupt the market presence of established consumer products in Europe to extract excessive license fees. While the interest of PAEs is limited to monetary compensation and not to stop the sale of products, the mere threat of such automatic injunctions is enough to push most targets of such assertions to accept disproportionate settlement conditions. It’s a hugely profitable business model for PAEs but it does little for innovation or for society, and undermines Europe’s competitiveness. By allowing this abuse, the European patent system is tilted too far in favour of patent holders and needs to be re-balanced. That is why in spring this year IP2Innovate called for the Commission to adjust the EU’s Intellectual Property Rights Enforcement Directive (IPRED), adopted in 2004. The law does require courts to apply proportionality when considering patent infringement cases, but this is not being applied in practice as injunctions continue to be granted effectively automatically even in cases where an alternative remedy would be more proportionate. An analysis of patent court rulings provided by Darts-ip, the leading source of global patent case data, for the period 2015-2020, shows that more than 99% of cases saw no proportionality assessment. Ensuring the equitable resolution of patent litigation in the EU through a targeted amendment of the IPRED is of even more importance with the establishment of the Unified Patent Court (UPC). Indeed, a recent study by Professor Sterzi of the Bordeaux School of Economics shows that PAEs initiated close to 30% of all infringement actions in the ICT sector – a key area for European competitiveness – in the UPC. If automatic injunctions become the norm in the newly established UPC, innovative companies would face UPC-wide automatic injunctions and not just ones at national level. The European Commission is evaluating this dynamic, and in 2023 commissioned a study to look at whether proportionality is being applied in Europe as well as looking into the role of PAEs in Europe. IP2I welcomes the European Commission’s initiative as Europe needs a properly functioning patent system fit for the modern age if it is to succeed in enhancing Europe’s competitiveness. The proportionality of remedies must be applied in patent litigation. Courts and parties need a clearer steer from Brussels to ensure it happens. Targeted revisions of the IPRED in relation to proportionality look set to be the next key challenge in patent policy in Europe. IP2Innovate hopes that the new attention being paid to the IPRED’s proportionality requirement will help to find a balance point in the European patent system that better suits the broader interests of innovation and society.

Patrick Oliver

This year World Intellectual Property Day focuses on SMEs. As the two examples below show, patents can be an SME’s worst enemy, as well as their best friend. Abuse by patent assertion entities is a serious and growing threat in Europe, especially to small and mid-size innovative firms. The gaming of the European patent system must stop.

IP2Innovate

A new academic paper titled Realizing the potential of proportionality in patent enforcement A case for amending IPRED by professor Rafal Sikorski from Adam Mickiewicz University in Poznan, Poland makes a convincing case for making targeted amendments to the IP rights enforcement directive (IPRED). IP2Innovate spoke to him and asked why IPRED reform is so important for European competitiveness? Here’s what he said: “We are aware that patent enforcement, especially injunctive relief, can be leveraged by patent holders to obtain excessive royalties. Users innovate with their products but find there may be a patent in a small part of the product, one that may even have come from a component supplied by a third party. This is frequently the case with complex tech products. Clearing up these patent issues is both time consuming and costly and in some cases – that is when patent applications have just been filed by patent holders but not yet published – simply impossible”. Professor Sikorski said. “This impacts competitiveness because it can result in products being removed from the market. The injunction creates a barrier to entry and that stifles competition It deprives the market of competition, and it denies consumers the ability to buy these products. “Products have been barred from sale in Europe due to patent disputes. It has happened in the mobile phone sector, laptops, cars. Even a temporary injunction has a very negative effect on a firm’s business. “Mario Draghi’s report on how to restore European competitiveness has been interpreted by some patent owners as a call for strengthening patent enforcement. However, I would argue that Europe must have a more flexible system. Ensuring healthy innovation and competitiveness requires more than just rigid enforcement. It also needs flexibility to address concerns in individual cases.”