Sisvel, Europe’s most notorious patent troll, is known for its unscrupulous way of using (many feel: misusing) the criminal system in Italy, where they convinced Italian public prosecutors – not particularly known for their penchant for patent law – to use the criminal system in an unprecedented way, to enforce its patents it licensed from Philips c.s. against alleged infringers.
The practice has driven many companies in (involuntary) license deals by making their lives miserable and forcing business people to take licenses rather than fighting the patents in court. Big names like Apple, Motorola, Creative, Sony Ericsson, Samsung have given up challenging the Philips mp3 patents, administered by Sisvel, due to Border Detention orders – disrupting distribution channels – and the use by Sisvel of criminal proceedings and other enforcement tricks against those companies.
Now Sisvel has been able to bring the Patent Wild West into Germany.
On September 7, a judge at the Berlin court ruled in favor of SanDisk, arguing that the use by German public prosecutor’s office of a criminal “search” and order to seize SanDisk’s new Sansa mp3 players at the IFA consumer electronics exhibition in Berlin, was illegal. Today, the public prosecutor not only filed an appeal, he also managed to get another judge (so not an appeal judge) in the same court to overrule his colleagues decision to have the release of the seized SanDisk mp3 players suspended. This application by the public prosecutor was filed at the municipal court in Berlin, which has to decide about these applications to “stay” the release of the seized goods before the matter is forwarded to appeal court. It is said that the public prosecutor decision to appeal the Berlin Court decision and to apply for interim measures was based on directions of the head of his unit. Normally an appeal by the public prosecutor does not postpone the effect of the Berlin Court’s order. To circumvent this he applied for an interim decision which would have that very effect.
This highly unusual action by a public prosecutor, usually engaged in fighting crimes, cannot but mean that he is “(mis)guided” by Sisvel, as there is no sensible explanation for seeking interim relief after the trade fair has ended, other than that he is being pressed by Sisvel to do this. Sisvel exports its Wild West enforcement charade it was able to uphold in Italy against honest businesses in Germany.
It is a shame public prosecutor’s office let itself be used by Sisvel in this patent wrangle, where it basically is a patent fight that needs to be fought (and actually is fought) in civil courts. SanDisk – assisted by Simmons & Simmons partners Hans-Hermann Aldenhoff and Peter Meyer and McDermott Will & Emery partner Boris Uphoff – will, no doubt, seek civil and criminal law suits against both Sisvel and the prosecutor, based on tort, antitrust violation and unfair competition. Whilst not all may be succesfull, one cannot underestimate the “1000 needles” effect which would transform SanDisk from prey to hunter.
For all information on Sisvel proceedings and current legal status of licensing issues, contact Jasper Helder at Simmons & Simmons (email@example.com)