Prof. Alain Strowel: IP law professor with a grounding in philosophy

Professor Alain Strowel’s academic curiosity was first sparked by philosophy. At 18 he went to the universities he would later work for as a law professor, the Université Saint-Louis in Brussels and the UCLouvain.

“I was more into philosophy at that age but then I was persuaded to add law on top,” Prof. Strowel said in a telephone interview.

The move into intellectual property law was prompted by his love of the arts. “I was initially interested in laws protecting the rights of creative people – copyright in particular.”

Patents felt off limits initially because he had no scientific background, but soon learned that while it could be helpful, a scientific background wasn’t essential.

Today Prof Strowel focuses on topics related to technology. In addition to his professorships at UCLouvain and University Saint-Louis, he is also a senior partner and member of the IP & IT law department at the law firm Pierstone Brussels.

Recent academic papers have focused on topics such as AI, platform regulation, data governance and data mining. But patents and the changes to Europe’s patent system are topics close to his heart.

As the launch of the Unitary Patent Court (UPC) draws near Prof Strowel isn’t convinced that its judges have a good enough grasp of the economic context for many patent disputes, especially in areas involving complex IT products containing multitudes of patents, and of the new balancing requirements with competing fundamental rights, such a freedom to conduct a business.

“We’ll have sophisticated judges – the smartest on the bench,” he said, adding nevertheless that the prevailing approach in Europe, with its focus on property protection, is too simple for many complex cases today.

He is a strong advocate for applying the principle of proportionality to patent rulings. “To do this you need a broader analysis than simply looking at property ownership. The UPC judges should be trained to consider the context, in particular the economic impact of their decisions,” he said.

In a paper from 2020 Prof. Strowel argued that Europe’s patent legal framework is not completely fit for patent litigation involving disputes between bona fide commercial parties operating within the normal course of business. He pointed to the growing problem of non-practising entities (NPEs), otherwise known as patent assertion entities, or more colloquially patent trolls.

“With the arrival of the UPC there’s a risk we may see more litigation involving NPEs, because they will be attracted by the possibility of leveraging their assets at a much higher level,” Prof Strowel said.

One important safeguard will be transparency. The UPC looks set to be more transparent – and subject to more scrutiny – than the national patent courts that hear patent cases now. “As long as there is transparency then I am less pessimistic. Eyes will be on the rulings,” he said.

Prof Strowel is more circumspect about the other big news in the world of European patents - reform of the German patent code last year. “We should wait and see if the reform has implications – it’s too early to say yet.”

Germany has a very mechanical approach to patent disputes, he said. Automatic injunctions are the norm. Taking into consideration other factors than the simple property rights of the patent holder is not common in Germany, but other European jurisdictions are also tempted by this approach.

“There should be greater awareness of third party interests as well as other factors,” he said, adding that if Germany changes course then, and only then, will the rest of Europe follow.

IP2Innovate

Seeking a new balance point in Europe’s patent system that better suits innovation and society

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.

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Prof. Alain Strowel: IP law professor with a grounding in philosophy

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Prof. Alain Strowel: IP law professor with a grounding in philosophy

Other blogs

Seeking a new balance point in Europe’s patent system that better suits innovation and society

Professors Hofmann and Raue: Taking proportionality seriously in the Unified Patent Court

UPC wrangling over transparency risks undermining Europe’s patent court ambitions

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