Committee of Economic Affairs and Climate policy, Committee debate on Innovation

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.”

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Last month a law firm submitted a request for documents under rule 262.1 (b) of the UPC Rules of Procedure, which ensures that written pleadings and evidence in patent litigation proceedings are available to the public “upon reasoned request.” The firm is calling on the central division of the Unified Patent Court in Munich to make available all written pleadings and evidence for a pending case in the court. The aim of the law firm, Mathys & Squire, is to establish a clear and consistent path for the public to access these documents in the future. IP2Innovate fully supports this initiative. We have been campaigning for more transparency in patent litigation for many years, and welcomed the improvement to the status quo that the UPC’s rules promised.

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There is broad agreement on the need for taking proportionality considerations into account in patent litigation cases but it’s not being applied in the courts in Europe. As a result, injunctions are being handed out automatically in almost all cases, even though EU legislation – the IP Rights Enforcement Directive (IPRED) – specifically calls for judges to apply proportionality. IPRED needs targeted amendments in order to correct this. In his paper titled Permanent Injunctions and the Reception of the Principle of Proportionality in the European Union, Rafal Sikorski, assistant professor, Chair of European Law at the Adam Mickiewicz University of Poznan in Poland, calls for reform of the directive. “The EU should consider introducing a set of factors to IPRED that the courts should consider when applying proportionality. In fact, this approach has already been taken by the EU legislator in the Trade Secrets Directive,” Professor Sikorski said in an interview.