Saturday, August 19, 2023

Big Law-sponsored conference on standard-essential patents attracts first-rate speakers to Poland in September: underexploited non-UPC enforcement opportunity

This post is not just about a conference but also about forum diversification in patent enforcement. I was really surprised to see the roster of speakers on the website of a conference on Emerging issues in licensing and enforcement of Standard-Essential Patents that will be held in the Polish capital of Warsaw on September 7 and 8, 2023. Without endorsing any particular person's positions, I noted SEP "household names" including (but not limited to) Professor Jorge Contreras, German Federal Court of Justice patent judge Fabian Hoffmann, DG GROW IP official Kamil Kiljański, UKIPO SEP and regulation expert Jamie Lewis, German patent litigator Professor Tilman Mueller-Stoy, the European University Institute's Igor Nikolic, and Compass Lexecon's Jorge Padilla.

The timing couldn't be much better, given the "rentrée" of EU politicians and public servants after the summer break, with the deservedly controversial EU SEP Regulation on the agenda. Frankly, Europe has way more pressing problems to address than SEP enforcement. But some politicians and their advisers appear dead-set to forge ahead with a dumpster fire of a legislative proposal. A bill made in hell because it's just so fundamentally ill-conceived.

I don't attend a lot of conferences in person (and not even too many webinars to be honest). But in this case it's really just for logistical reasons: otherwise I'd go there and listen.

From what I heard, there's only been one or two SEP infringement lawsuits in Poland so far. And if it weren't for the legislative proposal I just mentioned, I'd actually predict an interesting future for Poland as a SEP enforcement venue with great potential to complement the UPC territory on the Eastern side.

Poland's GDP is approximately $700 billion, roughly a sixth of that of its large Western neighbor, Germany. But for some standards-implementing products, it is a sizeable market. And litigation expenses are presumably low compared to U.S., UK, UPC, or German actions.

I would recommend to SEP holders to file more cases in Polish courts. It's worth a try. However, should the EU SEP Regulation be enacted in any way, shape, or form similar to its current state, then there would be significant legal uncertainty throughout the EU. It's not a given that net licensees will benefit: the new system will be untested initially (by definition), and it might determine royalties that implementers will be none too pleased to pay. But uncertainty alone may be reason enough to focus more on non-EU jurisdictions such as the U.S., UK (despite recent setbacks for SEP holders), Brazil, Colombia, or India. Other non-EU jurisdictions such as Turkey (a population size at a level with that of Germany) or Switzerland (small but affluent) could be put on the SEP enforcement map by an EU stupidity.

Even in a worst-case scenario, though, that EU regulation won't really make an impact for well over two to three years. In the meantime, SEP holders in quest of leverage may file some experimental enforcement actions in Poland, especially if local patent litigators now have such a splendid opportunity to network with key members of the global SEP community.

Big Law firms Kirkland & Ellis and Cleary Gottlieb are among the conference sponsors, as is CMS, a European firm that has a Polish patent litigation practice, and some local players.