Graham & Van Zeebroeck - Comparing Patent Litigation Across Europe: A First Look

Tonight, I recommend Stuart Graham & Nicolas Van Zeebroeck's article Comparing Patent Litigation Across Europe: A First Look published in the Stanford Technology Law Review in September 2014.

Recently, some of the hotly contested high tech patent enforcement occurred in Europe. Thus, to increase the chance of success, it is important to understand what is actually happening in Europe based on data rather than war stories.

Here's the authors' abstract of the article: "Although patent litigation has become increasingly global, with litigants earning billion-dollar verdicts and seeking judgments in many different jurisdictions around the world, scholarship has been almost completely silent on how such litigation develops outside the United States. This void in understanding is particularly glaring in Europe, where U.S. and other litigants are increasingly drawn, and to which policy makers interested in harmonizing the U.S. patent system look in vain for answers. Courts, litigants, commentators, and policy makers speculate about how litigation and judicial outcomes differ, but have no factual basis for comparing or understanding what actually transpires.

With a view to settling this uncertainty and allowing for the emergence of a more robust body of scholarship, this Article sets forth the results of an empirical study of a database including nearly 9,000 patent suits from seven of the largest and most judicially active countries in the European Union during 2000-2010. In the process, it shows that the incidence of litigation and the bases of judicial outcomes diverge radically across the different countries and types of patented technologies in Europe. Accordingly, the Article, for the first time, provides an empirically grounded, factual basis for examining stubborn questions relevant to those needing clarity about the legal environment in Europe, and to comparatively study the United States’ system."

The results unveiled in this Article are profound, bringing clarity to a legal environment that has been heretofore shrouded in shadow. The results show that the frequency of patents reaching a judgment in litigation varies widely across European countries in ways that belie the simple differences associated with the quantity of domestic stocks of enforceable patents. By demonstrating that disputes are much more frequent in some countries (e.g., the Netherlands and France) as compared with others, the Article uncovers that practitioners’ estimates—the sole previous baseline source—are not accurate.

By showing how litigation varies widely across technologies, this Article provides critical insights into the likelihood of different kinds of patents reaching a judgment in the diverse European courts. It also offers surprising evidence regarding how litigants’ raising of patent validity and infringement claims differs from one European court to another, and how outcomes too are starkly different.

The main policy implications of the Article follow from the reported patent litigation patterns across technologies and countries. The findings highlight both the fragmentation and variation within the European patent system, and the fundamentally different dynamics that will continue to shape patent enforcement across technology sectors and industries. The patterns also underscore the variation in predictability, and differences in legal certainty, that innovators, patent holders, and their technology competitors experience in the fragmented European system. These cross-country differences highlight institutional variation among the jurisdictions, which in turn drives the costs and incentives to use the courts, helping to provide critical comparative data as Europe moves to a continent-wide Unitary Patent and Unitary Patent Court in 2015.

Moreover, since several of the changes proposed in Congress closely resemble rules already in place in the several European jurisdictions, the Article’s findings are relevant to current U.S. policy debates on potential patent reform. The Article’s important and unprecedented empirical analysis enable comparative patent system policy debate in a way which previously was impossible."

Copyright © 2014 Robert Moll. All rights reserved.

Europe's Top Regulator Warns Nokia - Patent Licensing Will Trigger Antitrust Action

On December 9, Europe's top regulator warned although he approved the $7.2 billion sale of Nokia's business to Microsoft, he was concerned Nokia would attempt to "extract higher returns" from its patents. He said this seeking higher returns (e.g., a higher royalty rate in patent licensing) was behaving "like a patent troll, or "a patent assertion entity" and  he would not tolerate Nokia taking "illegal advantage" of its patents but instead sue it for the antitrust violation. So what can you Nokia do with its patents in Europe? Put them on a bookshelf-- and promise never to assert them.

See Associated Press article EU Warns Nokia Not to Become 'Patent Troll'

Copyright © 2013 Robert Moll. All rights reserved.

Samsung Agrees To Not Seek Injunctions In Enforcing Standard Essential Patents (SEPs) In Mobile Communications for Five Years in Europe

ZDNet reports that Samsung waves white flag on patent wars. Perhaps a bit of hyperbole, but still a significant change in Samsung's strategy in enforcing standard essential patents (SEPs) in the mobile computing patent wars in Europe. Thanks to Suzie Lipton-Moll for passing on this article today.

Copyright © 2013 Robert Moll. All rights reserved.

NYT Article - Tech Giants Fear Spread of Patent Wars to Europe?

In Tech Giants Fear Spread of Patent Wars to Europe, the NY Times reports certain tech companies wrote a letter to European Officials that expresses concern patent trolls will take advantage of a unified patent court slated to open in Europe in 2015.

The article says "executives of some of the companies that sent the letter said one of their concerns was that court-shopping by patent trolls in some smaller European countries could turn parts of the Continent into the equivalent of the Eastern District of Texas. That federal court jurisdiction has become an American capital of patent litigation known for sympathetic juries and speedily moving cases." So do I have this right? One of their concerns is the Eastern District of France in 2015?

More seriously, the tech companies letter raises some good points: bifurcation of infringement from validity in different courts might enable an unscrupulous plaintiff to get a infringement ruling, along with an injunction barring products from most of Europe market, before validity is determined. Although we don't have this problem we do have courts finding infringement following by the USPTO holding the patent invalid in reexamination and post-grant proceedings. Also the letter mentions the problem of injunctive relief being used to extract excessive royalties from companies fearing business disruption.

I am not sure this letter expresses much confidence in Europe's ability to identify and handle these types of problems. On the other hand, US companies tend to be on the cutting edge for patent problems and understandably want to pass along what has been painful in the States.

Thanks to Alan Cooper for the article!

Copyright © 2013 Robert Moll. All rights reserved.

Apple v. Samsung - European Commission Accuses Samsung of Patent Abuse

Today, the BBC reports EU accuses Samsung of  patent abuse in Apple lawsuits. Note this is the European Commission's preliminary view and a final ruling will issue after Samsung presents its defense.

Thanks to Alan Cooper for forwarding this article just now.

Copyright © 2012 Robert Moll. All rights reserved.