08.11.19

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Europe is Gradually Becoming a Hotspot for Patent Litigation and Trolls as Patent Quality Decreases

Posted in Europe, Patents at 7:31 am by Dr. Roy Schestowitz

Euro

Summary: European jurisdictions have become more attractive for players seeking to litigate rather than innovate; this is exactly what litigation firms have been drooling over all along, basically an opportunity to tax Europe with no benefits to the European economy

THE quality of European Patents has collapsed to the point where law firms sometimes say that it’s lower than that of US patents, granted by the USPTO after Alice/35 U.S.C. § 101. While the US took some important steps to elevate the quality of patents, at least in the courtrooms, Europe was pushed the other way — towards UPC (which thankfully failed) and disregard for quality at the EPO — to the point of routinely violating the EPC (this is one of the reasons the UPC is failing). The expectation was, all along, that such deterioration in patent quality would attract/invite patent trolls to European courts. Law firms that enlist trolls as their clients had been having wet dreams about it for decades.

“The expectation was, all along, that such deterioration in patent quality would attract/invite patent trolls to European courts. Law firms that enlist trolls as their clients had been having wet dreams about it for decades.”In recent years we saw some comprehensive surveys suggesting a sharp increase in troll litigation mostly around Germany. It is definitely measurable. This morning we saw much-needed patent reporting — again — from what little remains of active patent blogs, naming Avanci, Nokia, Sharp and Daimler. The gist of it:

Through a filing with Judge Lucy H. Koh’s court in the Northern District of California, I’ve become aware of the following patent infringement complaints (presumably but not necessarily involving one or more requests for injunctive relief) filed by Foxconn subsidiary Sharp Corporation against Daimler in Germany…

[...]

Like Nokia’s German patent infringement suits against Daimler, those Sharp cases involve, at least in part, cars that come with a telematics control unit (TCU) supplied by Continental, which alleges that “Sharp’s lawsuits are evidence of the immediate, substantial threat that Avanci will encourage or direct its members to engage in a concerted litigation campaign in an effort to force Continental’s OEM customers to take a non-FRAND license through Avanci.”

Filing “over five patents in two German courts” (to quote the headline) is no longer so uncommon because the European Patent Office (EPO) is granting dubious patents, including software patents in Europe. They’re added up, i.e. a bunch of law-quality patents, to sue or to threaten in bulk. It makes a defense more expensive, compelling the victim to simply settle (or ‘license’) instead. Nowadays Campinos and his colleagues — much like Battistelli — are meeting with patent trolls and their front groups. They even co-host events. Who does the EPO strive to serve and what goals? Whose goals?

“Sometimes one has to wonder if Team UPC and their friends in patent trolls’ circles joke about how they hijacked the EPO (with ‘moles’ who do whatever the trolls want) and nearly hijacked the court system too (with the UPC).”We have meanwhile noticed that the patent trolls’ lobby and the EPO’s favourite propaganda outlet (IAM) sort of promotes the lowering of the British Pound as “good for litigation”. Their sick logic goes like this:

For example, although patents are not directly affected by Brexit, it is pretty clear that whatever lingering chances there were the unitary patent system might include the UK will die with No Deal. However, against that, think of the falling value of the pound.

Currently hovering at the $1.20/€1.07 mark, the UK is becoming a much cheaper jurisdiction in which to litigate. If the Supreme Court upholds the Unwired Planet decision, that might make London’s courts even more compelling venues in which to enforce SEPs as a means to secure global settlements. With a G8 economy, expert judges, highly-skilled practitioners and lower costs than ever before, what could there be for rights owners to dislike about litigating in the UK?

They cite a patent trolls’ case as though it’s a desirable thing for the UK. Maybe some law firms based in London like it, but the British public stands to lose the most from such lawsuits. What’s at stake here is market embargo, i.e. reduction in choices offered on the British market and with it the potential of price hikes.

Sometimes one has to wonder if Team UPC and their friends in patent trolls’ circles joke about how they hijacked the EPO (with ‘moles’ who do whatever the trolls want) and nearly hijacked the court/legal system too (with the UPC).

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