24 February 2012

The EU Commission, the Smartphone Combatants, and their Interplay on SEP and FRAND

On the ksnh::law blog we just issued a series of two postings titled "EU Commission’s Approach to Standard-essential Patents and FRAND sharpened by ‘Smartphone War’" to explain the political attitude and legal initiatives of the EU Commission (part 1) and the way the various smartphone combatants follow their not at all altruistic tactics in this regard (part 2).

In these articles we look at how the various players of the so called 'smartphone war' trigger the EU Commission's antitrust policy aiming at keeping technological markets defined by standards freely accessible by FRAND commitments of proprietors of standard-essential patents. On the other hand side, the bitterly competing tech giants involved are very tactically trying to utilize the EU Commission's ability and willingness (see e.g. this speech of Commissioner Almunia) to impose severe penalties on abusers of standard-essential patents to their own advantage.

For example, the EU Commission only recently announced to open formal investigations against Samsung for disturbing the mobile device market by using its 3G/UMTS standard-essential patents contrary to their FRAND commitment vis-a-vis ETSI. Motorola, in turn, might be threatened with the same fate if the EU Commission will comprehend the complaints of rivals Apple and Microsoft (see here and here) against the ICT firm with the large patent portfolio that will now be taken over by Google after the EU Commission's approval.

For our German readers, the following two postings on our German language blog ksnh::jur cover more or less the same content, albeit differently compiled:

15 February 2012

Unitary Patent: EU Authorities increasingly frustrated while some hope for the Danes and others prefer Fisheries

One of the hot topics we closely follow on ksnh::law is the development of the Unitary Patent (cf. EU Regulation) and the Unified Patent Court System (cf. Draft UPC Agreement) in Europe and the related discussion among politicians, experts, practitioners and system users.

Only recently we summarised the current situation in two larger articles:

Basically, what happened is that the speed and rush, as critisised by some observers (e.g. FICPI, CIPA) had been taken out of the legislative process, as an official statement issued after an informal financial EU Council meeting on 30 Januars 2012 clarified that
The participating Member States commit to reaching at the latest in June 2012 a final agreement on the last outstanding issue in the patent package.
That is, the hopes appear now to be placed in the mediative abilities of the Danish EU Presidency under Prime Minister Helle Thorning-Schmidt as to convince Angela Merkel and David Cameron (and, should he remain in power, Nicolas Sarcozy) to save the project by a more pragmatic attitudes at the top flight of EU executives.

In line with this, it turned out in mid January that the EU Parliaments's Legal Affair's Committee (JURI)
JURI has decided to postpone the EU Parliament’s long-standing first plenary session on the EU Patent Package (cf. minutes of the JURI meeting of 19/20 Dec 2011, PE478.655v01-00):
The Chair [i.e. Mr. Klaus-Heiner Lehne (DE, EPP), Rapporteur for UPCA] stated that, whilst the committee was able to vote on the three patent procedures, there would be no vote in plenary until an agreement had been reached on a seat for the relevant EU body.
In fact, instead of any debates on Unitary Patent Protection, a Fisheries debate was held on 14 February 2012. That might by a meed much.

For a more complete picture on what is going on in this particular field of EU politics, you may refer to the two above-referenced articles [1, 2] which, inter alia, relate to the following issues:
  • the political story so far and the efforts of stakeholders
  • the EPO's attitude towards patenting costs
  • the seat of the Central Division of the UPC
  • the present political situation within the European Union
  • the role of Angela Merkel and David Cameron 
  • Munich versus London
  • the hearings of the Scrutiny Committee of the UK House of Commons
  • JURI's recommendations for the postponed plenary voting

14 February 2012

IP Enforcement Efforts in the European Union

Now as the debate on the Anti-Counterfeiting Trade Agreement (ACTA) is gaining momentum, as shows this Google Trends graph, the ksnh::law blog is trying to put a stronger focus on the enforcement efforts within the European Union. We began working on that topic with the following postings during recent weeks and months:

    ACTA. (cf. ksnh::law [1], [2], [3]) While ACTA requires in Art. 2 § 1 that
    Each Party [i.e. Acta member state] shall give effect to the provisions of this Agreement. A Party may implement in its law more extensive enforcement of intellectual property rights than is required by this Agreement, provided that such enforcement does not contravene the provisions of this Agreement. [...]
    it does not come as a surprise that in some of the ACTA member states some (if not many) of the provided provisions are already in force, e.g. by implemented secondary EU law regarding IP enforcement:
    Many of these existing provisions have worked for many years now without causing much trouble, so that the question arises as to what is the desired effect of ACTA. These are our observations:
    1. Forge something like a ‘coalition of the willing’ that desires to create some sort of institutionalised lock-in setting which in future prevents that certain standards agreed upon are ever undercut by reforms of national law weakening the system of IP protection;
    2. ACTA will create a third pillar of international IP enforcement institutions with own funding and bureaucratic structures, independent of and easier to control as WIPO and WTO / TRIPS
    3. Unlike WIPO and WTO, ACTA proponents chose to conduct initial negotiations in secrecy without even disclosing the initial text drafts, in order to prevent interventions from civil society that might disturb the desired Enforcement of Intellectual Property Rights in the Digital Environment, by which a legal environment would be set up where businesses relying on the Internet, in particular intermediaries, are subjected to a draconian regime of forced co-operation with a broad spectrum of enforcement efforts.  
    ACTA in Germany. As recently reported in German media (e.g. here or here), the German Government maintains its support for the international copyright agreement despite the recent mass protests in major Germany cities since IP rights need to be protected and enforced also in the Internet, as recently explained by Government spokesman Steffen Seibert on twitter. Besides that, many of the objections raised on ACTA in the Internet were not applicable, since e.g. ACTA neither requires net barriers nor is it a secret agreement, he added. Mr Seibert also explained that preliminary versions of the agreement have been made available on the Internet as early as 2010, while the final agreement as approved by the Federal Government is online since December 2011 (pdf).
    ACTA falls under the responsibility of the Federal Ministry of Justice under Sabine Leutheusser-Schnarrenberger (Liberal Democrats; FDP). While she initially gave instructions to sign the agreement, it came as a surprise that she expressed concerns and even withdrew her signing instruction only recently. This change of mind was explained by the fact that ACT is a "mixed multi-lateral agreement", which is why the Federal Ministry of Justice did not take an active part in the negotiations but only had an observer status. Besides this rather "constructed" argument, a Ministry spokesman could not give more convincing reasons for the Minister's turn-around.

    The center right CDU party of Federal Chancellor Angela Merkel, being the larger coalition partner of the Leutheuser-Schnarrenberger's FDP in the German Government, however, left no doubt that they consider the agreement still appropriate, which is why the Minister of Justice's change of mind was noted "with surprise". For example, Wolfgang Bosbach, prominent CDU spokesman of internal affairs, defends the ACTA agreement by arguing that what is forbidden in real life - i.e. copying other's intellectual property - cannot be allowed in virtual life.

    Revised IP Enforcement Directive. (cf. ksnh::law [1]) A Document obviously authentic laying out a Roadmap Proposal for a revision of the IP Enforcement Directive (Directive 2004/48/EC) says:
    [Some] initial assessment as well as a public consultation early in 2011 have revealed that certain provisions in the Directive may not be sufficiently clear and that this has lead to diverging interpretations in national courts. In addition, the Directive seems not to be sufficient to effectively tackle IPR infringements on the Internet. A number of other issues have been raised, that could be hampering a proper enforcement of intellectual property rights in particular for SMEs, such as the use of provisional and precautionary measures, procedures to gather and preserve evidence (problem of relation between the right of information and protection of privacy), the meaning of various corrective measures, including the costs of destruction, the calculation of damages.
    Furthermore, the roadmap document argues:
    The Directive has not been designed to deal with the challenges posed by the internet. The internet and digital technologies have added a new dimension to enforcement of intellectual property rights. On the one hand, the internet has allowed creators, inventors and their commercial partners to find new ways to market their products, but on the other hand it has also opened the door to new forms of infringements, some of which have proved difficult to combat. [...] As a result, there is a need to modernize the Directive to make it a suitable legal tool for the infringements committed on the internet.
    OHIM. (cf. ksnh::law [1] and [2]) Also recent measures to transform OHIM anto an IP enforcement think-tank appear to be politically related to an expectation that ACTA will enter into force within the EU, as Art. 28,31, 33 to 35 of ACTA aim at entrusting OHIM with certain tasks related to the protection of IP rights, including establishing a European Observatory on Counterfeiting and Piracy (COM(2011) 288 final).

    Future Role of EU Customs. (cf. ksnh::law [1], [2]) The first posting reports on Document 10880/11 (COM(2011) 285 final) covering a proposal for a new EU regulation replacing Council Regulation (EC) No 1383/2003 that intensifies the legal framework for enforcement of intellectual property rights, e.g. with respect to "introducing procedures enabling customs, under certain conditions, to have goods abandoned for destruction without having to undergo formal and costly legal proceedings", the latter sounding somehow frightening. This approach is justified by Document 10880/1 ADD 1 conveying a Commission Staff Working Paper, a summary of which is available with Document 10880/11 ADD 2, while details concerning a public consultation held in 2010 were published with Document 10880/11 ADD 3.
    The responsible Rapporteur, Jürgen Creutzmann (Liberal Democrats) has published his Draft Report on the proposed EU Regulation on 13 December 2011, suggesting, inter alia, that a traveller exemption clause in the Commission Proposal should be deleted, since the exemption of travellers’ luggage is inconsistent because IPR can only be enforced when the goods are of commercial nature/used in the course of trade. This and other suggestions of Mr Creutzmann apparently are highly controversial (Google translation).

    Document 5145/12, which originally was classified LIMITE but was obtained under a request based on Regulation (EC) No 1049/2001, covers some related notes of the General Secretariat of the EU Council and informs the Delegates of the Working party on Customs Union  under the Danish EU Presidency on the thematic topics to be further discussed, while the Role of customs and responsibilities of the right-holders and Transit are commented in some detail. Regarding the Role of Customs, however, the question arises as to whether or not Customs Officials indeed are qualified to take an active role in countering IPR infringements and safeguard the legitimate interests and rights of the concerned persons if it comes to more complex and entangled situations, especially when patent rights are involved.

     (photo 2009 by e³°°° via Flickr under a CC license)