Who is going to Stop Europe’s Patent Troll?

How Sisvel can get away with cowboy type legal actions as the one they now provoked in Germany (see previous post) is puzzling. Sisvel did it in Italy with Motorola (who had to give up and take a license), they now repeat it in Germany, trying to force SanDisk into taking a license. SanDisk, however, is of the opinion that the underlying three patents are invalid and not infringed upon. SanDisk is involved in civil patent litigations in Germany, The Netherlands and the UK. The outcome of these cases is not expected any time soon, at least not before Spring 2007 (if Sisvel will not find other cowboy methods to force SanDisk into taking a license).

The mp3 cases Sisvel is pursuing are not about counterfeits, they are about legitimately manufactured mp3 enabled consumer devices made by such giants as Apple, Motorola, Samsung, LG, Matsushita, Sony Ericsson, Creative, etc. Since when does a patent license issue (so a dispute about money, royalties, or license fees) ends up in a criminal court? It is because Sisvel’s arguments in a civil (patent) court don’t do the job. Which job? Extracting license fees for three patents that are invalid, not infringed upon and will not stand the ultimate test by any civil (patent) court. However the strategy is to fight any “infringer” (read: legitimate manufacturer of mp3 enabled consumer devices) by seizing goods at Customs (using the EU Border Regulation in a TRIPS incompliant way), use the criminal system in Italy and Germany to your advantage by misleading the public prosecutor (and the court for that matter) pretending you are chasing “counterfeits”? Sisvel’s managing director Dini gave an interview (in mp3 file) recently, pretending what Sisvel is doing is the right thing: “over 600 licensees have been entered into, so what’s wrong with Sisvel’s methods? They just do their job, right?” one would say. 

Wrong. There is a clear and present danger that patent strategies of Europe’s biggest Patent Troll will stifle innovation, keep competitors off the EU market illegitimately, extract licenses out of good businesses for an invention that was someone else’s (if at all an invention) and hence invoking -what I believe to be – invalid patents, thus misusing patent law, as is witnessed by:

1. use of invalid patents (not “novel” invention, Chambers, a BBC researcher, sugegsted exactly what has been described in the patented, years before the patent claimed it as their “invention”)
2. misleading Customs by letting them issue Border Detention Orders against (mostly) without proof of infringement, which is a must under the TRIPS Convention

3. charging license fees that are ludicrously high and certainly not “RAND” (“Reasonable And Non-Discriminatory”), as obliged under standard setting rules

4. misleading public prosecutors in Italy and Germany by making them believe all mp3 players they are chasing are made by “counterfeiters”, not telling what the real market situation is

5. pretending mp3 patents under their management are “real break through inventions” and deserve public recognition and licensee fees that amount to over 500 million euros

6. pretending that Sisvel does not need to show infringement by each and every player they seize, erroneously arguing that they need not do so as the mp3 patents under management are “essential patents” under ISO/IEC Standard 11172-3.

7. breaching EU law by entering a clause in license agreements that forbid licensee in Europe to challenge the validity of the patent (contrary to clear antitrust regulations of the EU) where the TTBE is not applicable taken Sisvel 100% market share (by their own admission, as all mp3 players are covered by “essential patents” that “Sisvel owns”

see also: Impact, “Sisvel v SanDisk – as clear as mud – The more you look into the Sisvel v SanDisk bun fight, the less clear it all becomes!” (Impact is a “blog about intellectual property and IT law from a UK perspective”)

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