« Recent reports indicate that European innovators are increasingly threatened with abusive patent lawsuits initiated by patent assertion entities (PAEs) that do not make any products or services but buy up large patent portfolios expressly to demand unfair payments from successful companies.
These entities are adept at exploiting the loopholes and rigidities of Europe’s patent legal system on automatic permanent injunctions, inadequate fee-shifting and poor-quality patents to gain unfair leverage to the detriment of innovative companies operating in Europe.
Data and findings from the 2016 Joint Research Centre (JRC) study on PAEs in Europe are incomplete, outdated and fail to capture the real extent of the problems that PAEs pose. This is partly due to the fact that patent decisions made by national courts are not easily accessible.
1. Does the Commission plan to carry out a comprehensive quantitative study to investigate the full extent of the problems posed by PAEs in Europe and better appreciate the risks they pose to European business and innovation?
2. What concrete steps will the Commission take to prevent further abuses by PAEs of the EU patent legal system and improve the transparency of patent litigation? »
Texte de la réponse :
« Answer given by Ms Bieńkowska on behalf of the Commission (12.12.2017)
1. The Commission is aware of concerns linked to the activities of Patent Assertion Entities ('PAEs'). The Commission study of November 20161 dealing with this issue reached the conclusion that the threat relating to the activity of PAEs in Europe is relatively moderate and is not expected to increase significantly in the near future. The Commission will nevertheless continue to closely monitor the situation in this area.
2. The law and practice regarding the granting of injunctions vary across Member States, from automatic injunctions to discretion on the part of judges. On 29 November 2017 the Commission adopted a comprehensive package of measures to further improve the application and enforcement of intellectual property rights (IPR). As part of this package, the Commission presented the results of an evaluation of the Directive on the enforcement of intellectual property rights and a Communication clarifying this Directive’s provisions, including measures aiming to ensure a balanced approach to IPR enforcement and prevent abuse.
In addition, once it is in force, the Unified Patent Court Agreement will leave to the future Court the discretion to weigh up the interest of the parties, and in particular to take into account the potential harm for either party resulting from the granting or refusal of the injunction. »