VIDON Group was a sponsor of 8th IP Summit in Paris from the 9th to the 11th of December 2013.
During 3 days, keynote speeches, plenary sessions and workshops have allowed thorough discussions about major recent Intellectual Property evolutions, practices, and ongoing reforms in Europe and worldwide, with high-level speakers representing companies, investors, private practictioners and public authorities.
On this occasion, Patrice Vidon wrote two daily columns summarising and commenting major sessions of this IP Summit:
I- IP in Europe : do we need less or more public intervention?
Indeed, the issue of public intervention was discussed in several sessions during this first day of the IP Summit 2013.
For example, in the morning session dedicated to FRAND conditions in the telecom business, all major SEP (Standard Essential Patents) holders were pleading for less public intervention. There were nuances though, from Qualcomm representative briliiantly defending the usual ultra-liberal point of view to a didactic Blackberry and more subtle positions by Alcatel and Technicolor. Echoing Joachim Almunia in his earlier keynote speech, the latter insisted on patent pools as a tool for market self governance.
But all were warning that the ECJ should think thrice until it will choose between German case Law (Orange Book) and DG COMP of the EU Commission, and render a very much awaited decision on whether and under which conditions injunctive relief should be granted against hard-negotiating would-be SEP licensees. “Don’t decide on principles; look at the actual market effect” was the recommendation from the big Players. Some in the audience thought that if one knows what the market is, it is sometime difficult to guess what it could have been.
With IP portfolios traded for billions of EUR or USD, and business strategies strongly relying on substantial flows of royalties, Intellectual property has become a very mature business field. A “do not disturb” sign is hanging at the door
Joaquín Almunia, Vice President of the EU commission for Competition Policy, did not quite agree. In his keynote speech, he had successively browsed the situation for the Horizontal Guidelines, the draft TTBER, SEP and the patent wars, NPEs, Google investigation, and improvements in patent settlements by the pharma sector (his speech online at http://europa.eu/rapid/press-release_SPEECH-13-1042_en.htm).
President Battistelli of the EPO closed the morning sessions and celebrated EPO’s 40th anniversary, promoted the Patent Translate deal of the EPO with Google, announced that non-Europeans continue to feed EPO’s growth, and graced us with the “scoop” that Brazil has just become a Member to the CPC (upon checking on wikipedia, I found out that this is the Cooperation for Patent Classification).
Among the afternoon sessions, I really enjoyed the playful participants in both mock trials who made their best to embody and personify the nascent Unitary Patent Court. Mock plaintiffs showed agility in reporting to patient Judges on provisional measures and seizures and juggled the rules of competence between local divisions and the central Court. Not surprisingly, bifurcation was sought in both trials. But the Judges bravely rejected the request, and undertook to decide both on validity and on infringement.
Defendants refreshingly abused of rhetorics, repeatedly tried to deconstruct the (draft) Rules of Procedure, and even raised anticonstitutionality issues or obscure National regulations in desperate attempts to resist against their fate, but ultimately lost the case.
Who said that Europe is a declining continent: on the contrary, such an enthousiasm to adopt and work an innovative litigation system spanning so many diverse judicial traditions shows that the world still has to count with Europe.
I have a thought for Margot Fröhlinger, the past IP Director at DG Internal Market who made it all happen with the support of many of us, and has been a key actor for the most welcome public intervention that has designed and is now launching the UPC.
II- Will the UPC enhance attractivity and competitivity of the European Market? Some answers brought by the IP Summit 2013
Day 2 of the IP summit developed as a succession of no less than eight plenary sessions, essentially dedicated to analyzing, scanning, and dissecting ins and outs of the emerging Unitary Patent Court.
European and US industry have made indeed interesting and sometimes unexpected comments.
I have reshuffled and summarized the comments in relation to two issues.
1. Will the UPC enhance the attractivity of Europe?
Quite strikingly, a vast majority of speakers for US businesses expressed very positive hopes about what they grasp (not a simple Gizmo that Court, is it?) of the Project.
Leadership and rational risk-taking have always been a source of excitation for our American cousins, even when practiced by and in the Old World.
Among others, Pat Kennedy, Founder & Chairman of Cellport Systems, Boulder, CO, suggested that he might even go as far as considering Europe for setting up his R&D activities if the new Court system will look more appealing to him than a US patent landscape that has become “unfriendly” because of squadrons of trolls, lack of transparency about actual owners behind “privateers”, and political controversy on top of it.
For speakers of all continents, cost and duration will be of the essence. Potential complexity was not really raised: unconsciousness or (well deserved) confidence in the capacity of European litigators, will they be patent attorneys or potentially pure lawyers, to guide litigating parties and crawl through the rules?
Opinions about whether injunctions should be easily or cautiously granted by the future Court, are much more split. This has however the advantage of being a sure winning issue for the old continent: whatever the UPC will decide about injunctions, Europe will attract in any case half of the US speakers.
2. Will the UPC enhance Europe’s competitivity?
Contrary to Grisham’s rule that bad moneys drive out good ones, it can be expected that the UPC will make strong patents stronger and weak patents weaker. Id est, offer a clear incentive to real and efficient innovation.
The most fascinating issue is that the Court itself will have the rare power to build its own jurisprudence as it will feel fair and appropriate. The orientations of its decisions will become an object of study for generations of scholars versed in political and social science. Take the issue of indirect infringement or even better of the doctrine of equivalents: will the Court adopt the English Catnic test, the German test of Gleichwirkung, Naheliegen and Gleichwertigkeit, the French subtle balance theorized by Paul Mathely of the “moyen différent, remplissant une fonction identique pour obtenir un résultat similaire”, or a new “compound” reasoning?
This said, the most promising discours for a more competitive Europe through its IP system in my view was that proposed by Kerstin Jorna, Director for IP at DG Internal Market and Services. In her keynote speech, she introduced us to her “inventor’s/author’s trail” bridging R&D and IP with EMPLOYMENT and EXPORT.
I reproduce below the enlightening scheme. Once completed to include a more cooperative win-win deal with third countries, we can but wish that it will inspire not only the EU Commission as a whole, but also the Judges of the UPC. Who would blame the latter if they would retain for their jurisprudence a truly systemic approach aiming not merely at building a unified market at all costs, but rather at improving the actual and continuous competitivity of the Union towards the outside world.
