Patrick Oliver

IP2Innovate welcomes the European Commission’s efforts to improve the IP landscape in Europe, in particular the emphasis on ensuring that the proportionality requirement in the granting of injunctions is met. However, the IP Action Plan outlined today needs to go further to address continuing abuses of the patent system.

“Other than yet more monitoring, the Commission has proposed no new action to address our concerns about the failure of courts to consistently apply the proportionality requirement in patent infringement claims across Member States,” said Patrick Oliver, Executive Director of IP2Innovate. That failure has fuelled a rise in litigation by non-practising entities—otherwise known as patent trolls—that hurts innovation in Europe.

“Monitoring is not enough. The Commission needs to provide Member States with clearer guidance on how to apply the proportionality requirement set out in EU law,” said Mr Oliver. This issue is key in light of the IP Action Plan’s push to launch the Unified Patent Court.

“Threats of automatic injunctions in just one Member State are bad enough, but under the UPC firms face the threat of Europe-wide injunctions,” Mr Oliver said.

“Ensuring that the proportionality requirement is consistently applied is essential to innovation in Europe and we stand ready to work with the Commission and stakeholders to make this happen. Failure to do so encourages patent holders in a negotiation over a disputed infringement claim to make disproportionate demands based on the damage that would result from an injunction rather than the value contributed by the patent. This is especially so if the infringement and any challenge over the patent’s validity are dealt with separately. No one wants to see consumers paying higher prices, or legitimate European firms—both big and small—diverting resources away from research and product development as a result of a bogus patent claim,” Mr Oliver said.