26. September 2013–
Tech and business giants are concerned new laws could encourage "patent troll" behaviour in the US to spread to Europe.
While patents are generally seen to support innovation, it's also a system open to abuse. In the US, "patent trolls" – firms that buy up questionable patents just to get royalties – can put an enormous drain on companies' resources and shut some down altogether.
Europe is moving towards a common patent system governed by a Unified Patent Court. The proposal has passed but the rules for the new court still need to be fixed.
What's the tech industry's problem?
In an open letter to European officials today, 16 companies – including Google, Apple, Microsoft, Samsung and Deutsche Telekom – say they are optimistic about the proposal but worry about two aspects of the court's draft rules: "bifurcation" and "injunctions".
Bifurcation means the question of whether a patent is valid is treated separately from whether it's been infringed. The companies say the draft rules would let these questions be decided by different courts. They want more guidance for how this should happen to avoid, for example, a product ban before a ruling on whether a patent is actually valid.
The companies also want to make sure injunctions (bans on products with unlicensed technology) are only used in cases that deserve it. The fear is that a "troll" with even a single low-quality patent claim could otherwise force a product ban across Europe.
"These fixes will help the EU system avoid the issues that have plagued the US and will ensure companies are investing in innovation and growth – not patent litigation," Google Europe's Catherine Lacavera wrote in a blog post explaining the letter today.
Experts and officials weigh in
German intellectual property analyst Florian Mueller – who writes at FOSS Patents and advises clients who have included Microsoft and Oracle – agreed.
"Not only do the signatories collectively represent a huge share of global IT innovation but it's even more remarkable that there is a consensus on these concerns even among companies that typically disagree on patent policy and have litigation pending against each other in the US and Europe," he pointed out today.
"It would be a mistake of enormous proportions to think that patent trolls are and will remain exclusively a US problem," he added – and, later: "Frankly, it's not that hard to increase legal certainty in the areas highlighted by this tech industry coalition."
Some officials contacted by The New York Times suggested concerns were exaggerated. British patent lawyer Kevin Mooney, who is involved in setting up the new court system, said the European system would be "less rigid" than Germany, home to recent high-profile patent wars affecting Microsoft, Motorola (Google) and Deutsche Telekom, among others.
Mooney also said the pleading stage of patent cases in Europe would cover both infringement and validity. "What kind of self-respecting judge would say, ‘I’m only going to decide the infringement part and I’ll send the validity part to France or England?’"
At least 13 of the 25 member states who've signed the agreement in principle need to accept the final plan for it to take effect. Spain, Italy and Poland are yet to sign on.
Image credit: Flickr user Cali4Beach
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