Contrary to EU law, courts across Europe consistently fail to consider proportionality in patent cases, new data reveals

IP2Innovate calls on the European Commission to promote similar reforms to those recently enacted in Germany in all EU member states


BRUSSELS, 25 November 2021 – Between 2018 and 2020, courts in nine EU member states plus the UK and Norway, handed out injunctions automatically in 98% of patent cases in which an infringement was found, according to data sourced from Darts-ip, a Clarivate IP intelligence solution.


Of the 224 court decisions examined, where an infringement was found and a permanent injunction requested, only four – or 2% – saw a proportionality assessment. The data shows that permanent injunctions are overwhelmingly granted by courts around Europe without any consideration of proportionality as is required by EU law.


The findings follow a landmark vote in Germany in June to move Europe’s busiest national patent jurisdiction away from automatic injunctions. The reformed German patent law calls on courts to make a proportionality assessment, and to consider the interests of third parties when doing so.

Automatic injunctions result in an imbalanced patent system which deters productive      firms and allows unscrupulous patent holders to extract disproportionately high settlements based on the threat of harm that would result from an injunction halting production and sales, rather than the value contributed by the patent.


The principle of proportionality is enshrined in all EU laws.  In the case of patents, proportionality protects against unreasonable demands from patent owners and requires that any remedy be aligned with the value contributed by the patent.


The issuance of an injunction without consideration of proportionality is a particularly powerful weapon when wielded by Patent Assertion Entities (PAEs) who do not make any product and simply seek monetary settlements. PAEs can use the threat of an automatic injunction and the damage that would result to seek settlements far greater than the value contributed by the invention or any actual harm resulting from the infringement.


“It is clear that automatic injunctions in patent infringement cases are the norm in patent courts across the European continent,” said Patrick Oliver, executive director of IP2Innovate, a trade group pushing for balance in Europe’s patent systems.


The data reveals that in France, Italy and the Netherlands – after Germany, three of the largest patent jurisdictions in Europe – there were no proportionality assessments carried out at all during the period under review.


“These countries, and many more, are consistently failing to apply an important principle of EU patent law that requires that remedies be proportionate,” Mr Oliver said, adding: “Now that Germany is adjusting its system it’s time the European Commission took action to encourage others to follow suit.”


This action could take the form of a set of guidelines to help member states correctly interpret EU laws, and in particular the Intellectual Property Rights Enforcement Directive (IPRED from 2004).


“We will of course be raising the issue in the member states highlighted in the study too,” Mr Oliver added.


Media contact:

Paul Meller

+32 497 322 966


Other press releases


IP2Innovate statement on the European Commission’s plans to propose a new regulation governing SEP licensing

BRUSSELS, 5 April 2023 – According to news reports last week the European Commission’s planned proposal for a Regulation on standard essential patents (SEPs) will tackle deep-rooted problems such as the lack of transparency and predictability in SEP licensing. IP2Innovate looks forward to reading the official proposal in the coming weeks.

SEP regulation: a step in the right direction

BRUSSELS, 28 April 2023 – IP2Innovate welcomes the European Commission’s proposal to reform the licensing of standard essential patents. “This initiative should at least help level the playing field when standard essential patents licensing is involved,” said Patrick Oliver, executive director of IP2Innovate. “The proposal isn’t as bold as it was a week ago, but it still has certain important reforms in place. Opponents of this reform have lobbied intensely for the Commission to abandon it. I hope that in an effort to compromise, the Commission hasn’t opened up loopholes that would undermine its effectiveness,” he added. IP2Innovate welcomes the Commission’s effort to inject much needed transparency into SEP licensing, limiting the instances where patent owners could abuse the system. In his press conference on 27 April, Commissioner Thierry Breton referred to how the current SEP system enables patent owners to extract excessive royalties. “He is right. This happens not only with SEPs but also in the broader patent system too,” said Mr Oliver, adding: "We hope he is also right when he says this practise will become impossible in the areas of SEPs, and that he then turns his attention to fixing related problems that plague the broader patents system in Europe.” IP2Innovate members collectively have thousands of European patents, including SEPs. They believe that patents play a vital role in the innovation process. But when the system is abused patents become an obstacle to innovation. And it’s not only happening with SEPs. Many patent assertion entities (PAEs) are in business to exploit the weaknesses in the system. IP2Innovate was established in 2016 to combat patent abuse by these PAEs, often referred to as patent trolls. It has been pushing for courts to move away from granting automatic injunctions in patent disputes, and instead apply remedies that are proportionate, especially when highly complex products are involved.
Patrick Oliver

New report: Europe faces a growing problem of firms abusing the patent system for financial gain

A  published today gives unique insight into how some non-practising entities (NPEs), also known as patent asserting entities (PAEs) or patent trolls, game Europe’s patent system. The report also provides further evidence that the problem of patent trolls is migrating to Europe from the US, and it proposes several policy responses to address the problem.
Back to overview

Subscribe to our newsletter

Privacy policy

© IP2Innovate 2024 - Website door Two Impress