Monday, December 9, 2013

Empirical Data on Patent Litigation in Europe and China; ACTA & TPPA; New Book on Patent Misuse

1.  I thought that readers might be interested in a couple of new papers that take an empirical look at patent litigation in Europe.  While this may not seem directly related to the topic of patent remedies, these papers do include some discussion of remedies and enforcement.  

The first is Katrin Cremers, Max Ernicke, Fabian Gaessler, Dietmar Harhoff, Christian Helmers, Luke McDonagh, Paula Schliessler, and Nicolas van Zeebroeck, Patent Litigation in Europe, available here.  Here is the abstract:
We compare patent litigation cases across four European jurisdictions – Germany, France, the Netherlands, and the UK – covering cases filed during the period 2000-2008. For our analysis, we assemble a new dataset that contains detailed information at the case, litigant, and patent level for patent cases filed at the major courts in the four jurisdictions. We find substantial differences across jurisdictions in terms of case loads. Courts in Germany hear by far the largest number of cases in absolute terms, but also when taking country size into account. We also find important between-country differences in terms of outcomes, the share of cases that is appealed, as well as the characteristics of litigants and litigated patents. A considerable number of patents are litigated in multiple jurisdictions, but the majority of patents are subject to litigation only in one of the four jurisdictions. 
The other is Christian Helmers, Luke McDonagh, and Brian Love, Is There a Patent Troll Problem in the UK?, available here.  Here is the abstract:
This paper reports the findings of an empirical study of patent suits involving non-practicing entities (NPEs) in the U.K. between 2000 and 2010. Overall, we find that NPEs are responsible for 11% of all patent suits filed in the U.K. during this period. Though this is a small percentage by U.S. standards, our study suggests that patent trolling might not be as uniquely American as conventional wisdom suggests. We also find little support for many common explanations for Europe’s relative scarcity of NPE activity. For example, we find that NPEs litigating in the U.K. overwhelmingly assert high-tech patents – even more so, in fact, than their U.S. counterparts – despite higher barriers to software patentability in Europe. Our study does, however, tend to support fee-shifting as a key reason for the U.K.’s immunity to NPEs. We see evidence that the U.K.’s loser-pays legal regime deters NPEs from filing suit, while at the same time encouraging accused infringers to defend claims filed against them. U.K. NPE suits are initiated by potential infringers more often than by NPEs; rarely end in settlement; very rarely end in victory for NPEs; and, thus, result in an attorney’s fee award to the potential infringer more often than a damages award or settlement payment to the patentee. Together, these findings tend to support patent reform bills pending in the U.S. that would implement a fee-shifting regime for patent suits, and may also serve to quell concerns that Europe’s forthcoming Unified Patent Court will draw NPEs to Europe.
Two other related papers by a subset of the same authors are Christian Helmers & Luke McDonagh, Patent Litigation in the UK;  An Empirical Survey 2000-2008, J. Intell. Prop. L. & Prac.(2013) 8(11):  846-61, and Christian Helmers & Luke McDonagh, Trolls at the High Court?, available here.  Yet another paper on a related topic is Stefania Fusco's Markets and Patent Enforcement:  A Comparative Investigation of Non-Practicing Entities in the US and Europe, available here.

2. Also interesting is Kimberlee Weaterall's recently posted paper Ignoring the Science:  What We Know About Patents Suggests Dire Consequences from ACTA and the TPPA, available here.  The abstract reads:
This forthcoming chapter looks at what research into the operation of the IP system, and particularly IP enforcement, tells us about the issues facing research-based firms, focusing on the ‘science’ side of IP, particularly patents, and using research, and information about domestic developments, to critique the approach taken in the most recent IP negotiations to affect the Asia-Pacific Region – namely, the Anti-Counterfeiting Trade Agreement (ACTA), concluded in late 2010, and the Trans-Pacific Partnership Agreement (TPPA), which at the time of writing is under negotiation. While much of the literature on patents in ACTA and the TPPA has focused on the (very important) impact on access to medicines, this chapter is concerned with the likely impact on the patent system more generally. We have grown used to hearing that the latest efforts at international IP standard-setting, the ACTA and proposals for IP in the TPPA, will have a deleterious impact on digital copyright law and on access to essential medicines. We have heard much less about the potential impact on the patent system as a whole – a much less sexy topic, no doubt, but in the long term, equally important. The patent research explored in this article suggests that both ACTA and the US’ TPPA proposal are not likely to be helpful in addressing the most pressing issues in patent law today; they risk being positively counterproductive, and exporting to the world the US’ own ‘patent crisis.’ The thought of a flood of low quality patents issuing from patent offices throughout the Asia-Pacific, should give everyone – including the negotiators of these and future agreements – serious pause.
Professor Weatherall has this to say in particular with regard to remedies:

A second issue is that ACTA-style detailed enforcement provisions uncritically adopt US or EU domestic arrangements. This could have some unintended side effects. One, as I have noted elsewhere, is the foreseeable impact of empowering officials (for example customs officers) with significant powers of seizure, determination of infringement and destruction of imported goods in countries still battling significant levels of official corruption. Secondly and more subtly, ACTA (and equivalent text in the US TPPA proposal) embodies an ‘all services platinum standard’ model of courtroom enforcement proceedings, where IP owners can seek preliminary measures (such as injunctions and measures to preserve evidence such as Anton Piller orders); obtain information from an alleged infringer regarding the channels of distribution of the alleged infringing goods, and a full suite of remedies including injunctions (including against third parties), damages, accounts of profits, costs orders, and orders for the destruction of goods and implements. Such a ‘full service’ standard is expensive and may not be appropriate for all IP cases or all jurisdictions. More importantly, it could have the side effect of forestalling countries’ attempts to address the cost barrier, for example by experimenting with low cost alternatives for small claims (including low cost administrative alternatives).
She also notes that "allow for treble damages for infringement giving patent holders a further threat to convince challenges to settle (Article 12.4)," though so far the U.S. appears to be standing alone with regard to this proposal.

3.  For empirical data on patent infringement cases and administrative enforcement in China, Mark Cohen’s China IPR Blog is an excellent source.  You can download the Supreme People’s Court White Paper on Intellectual Property Protection in Chinese Courts 2012 from this April 2013 post, here.  More recently, Mr. Cohen has blogged on the number of administrative enforcement actions in China this year, here.  

4.  This also isn't exactly a remedies issue, but it's related.  My friend Professor Daryl Lim just sent me a copy of his new book, Patent Misuse and Antitrust Law:  Empirical, Doctrinal and Policy Perspectives (Edward Elgar 2013).  This is, I think, the first book-length treatment of a difficult topic and is a most welcome addition to the literature.

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