Nokia placing transparent bet on German injunction gap with non-standard-essential WiFi patent against OPPO in Mannheim

Tomorrow (Tuesday, May 31) the Mannheim Regional Court's Second Civil Chamber (Presiding Judge: Dr. Holger Kircher) will hold its second Nokia v. OPPO trial. As I already reported last summer, the patent-in-suit in case no. 2 O 73/21 is EP1704731 on a "method and apparatus for indicating service set identifiers to probe for." I was clear all along that it's a WiFi patent. What I have meanwhile researched is that this patent hasn't been declared essential to WiFi (IEEE 802.11).

On the first of this month I expressed skepticism regarding the impact of the new Art. 83 of the German Patent Act, which calls on the Federal Patent Court to provide a preliminary summary of the issues in a nullity case within six months of service of the complaint. It's illusory to expect the court to reach a preliminary conclusion after six months on virtually 100% of all challenged patents when it so far needs years to form such an opinion in only about half of all cases. However, in some outlier situations such as tomorrow's Mannheim case (to which the new rule doesn't apply; it only affects cases filed this month or later) the Federal Patent Court would indeed be able to tell quickly and easily that a patent has serious validity issues.

I want to be clear and fair: Nokia has invested, and continues to invest, a lot in innovation. The company deserves respect for that, and respect for IP ultimately means royalty payments. But this doesn't mean that Nokia wouldn't also take an opportunistic win over a patent that is rather unreflective of its substantial investments in innovation. EP'731 is the technically thinnest European patent I've ever seen in litigation, even less technical than a patent Qualcomm asserted against Apple's Spotlight search in Munich (a fitting analogy as Qualcomm is one of the most innovative companies in the entire technology sector, yet sought leverage from partly underwhelming patents).

The number one reason why true innovators like Qualcomm and Nokia resort to patent assertions of that kind is that Germany's bifurcated patent litigation system and the "injunction gap" it entails encourages deep-pocketed plaintiffs to just play the lottery. The "German gamble" is that you assert--additionally or alternatively to more serious patents--a bunch of patents that should never have been granted in the first place. The hit rate may be low, but if you prevail on one or two such patents, you may get leverage--and, at a minimum, a news cycle about your adversary using your "intellectual property" without a license.

While we're on the subject of "intellectual", let's take a look at what that patent is all about. Obviously a page count alone doesn't answer the question. Sometimes an incredibly good idea can be described briefly. Here, however, even nine pages is epic when considering what the claimed invention amounts to:

In a nutshell, some WiFi networks identify themselves proactively by broadcasting an "I'm here" message while some others will only respond if a device asks "are you [stating a specific network name] around?"--and what the patent "teaches" is that you shouldn't ask that "are you around?" question with respect to a network that proactively tells you "I'm here" (just with respect to those that wait to be asked).

The alleged technical effect is that you save bandwith and power by not asking unnecessary questions. In light of worldwide efforts to combat climate change, energy efficiency is undoubtedly relevant. However, the starting point--"don't ask if it tells you anyway"--is obvious, and what's also obvious is that a device would use a "flag" (which is typically a 0/1 binary value). It would be a different story if this patent taught a particularly efficient way of doing this. But what it does is to cover all implementations. It says: use a binary flag, or some other data point--just store the information that a certain WiFi network will identify itself and doesn't have to be asked.

In light of how unbelievably uninventive that patent is, I'm not going to attend the Mannheim trial. The Nokia v. OPPO/OPPO v. Nokia dispute is generally very interesting. For instance, Nokia's EP'103 was successfully asserted against Daimler, though OPPO has dug up an Excel table that is part of the specification of the standard and, in my view, renders the patent non-essential. Whether or not I'm right about non-essentiality, EP'103 is a patent to be reckoned with. Also, an OPPO patent that is being asserted against Nokia in Munich was described as a groundbreaking innovation that enables low-latency 5G network communications. By comparison, I very strongly doubt that there will ever be an injunction against any defendant over EP'731. It's a lottery ticket, and even if it worked out, it could be worked around by simply checking for the presence of all WiFi networks on the list, even those that self-identify. That workaround would result in unnecessary carbon emissions--and there might be some logistical challenges if a chipset had to be replaced with a modified one. But it could be done.

The odds are long against this lottery ticket winning Nokia the jackpot, especially before judges that have a pretty good feel for what constitutes true innovation. I was really impressed with how easily Judge Dr. Kircher identified the non-technical nature of Qualcomm's "amended" claims of a patent relating to electromigration. That Qualcomm patent was actually rocket science compared to EP'731...

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New § 83 of German Patent Act entered into force today, requiring Federal Patent Court to hand down preliminary opinions within six months: foolish and pointless 'reform'

The most stupid piece of patent legislation I've ever seen--apart from bills that never got enacted--is PatMoG2, last year's German patent "reform." Most of it entered into force in mid-August 2021, and 8 1/2 months later there still hasn't been a single case in which the "proportionality" language inserted into § 139 made a difference. What those advocating for stronger defendants' rights pursued as their #2 priority was a plan to mitigate the effects of bifurcation (invaliditation proceedings typically taking much longer than infringement cases). In that regard, too, the only clever and honest way to deal with it would have been for those "reform" advocates to tell politicians--politely, but clearly--"thanks, but no thanks." Instead, they contented themselves with crap, hoping that it would enable them to falsely claim victory without changing a thing in practice.

It was a win-win-win situation in the sense that patent holders preserved the status quo, "reform" advocates had something to show (though anybody who knows how patent litigation in Germany works wouldn't expect different outcomes), and politicians could make it look like they had solved a problem.

Short of abolishing bifurcation (as Judge Pichlmaier suggested in his comments to Juve Patent), the only thing that would have helped net licensees is a lower hurdle for getting cases--or the enforcement of injunctions--stayed. Oddly, a lower standard for staying the enforcement of injunctions during an appeal was even proposed as a solution by certain lobbyists representing key net licensors. But the misguided and incompetent "reform" camp didn't take the deal, and got nothing useful in the end.

All they achieved was that the German legislature inserted language into § 83 PatG (Patentgesetz = [German] Patent Act) that calls on the Bundespatentgericht (Federal Patent Court) to hand down its preliminary opinions on nullity complaints within six months of service of a given commplaint on the patent holder. That new § 83 PatG entered into force only today as a grace period was needed so the Federal Patent Court could adjust. Today is a Sunday (plus, a national holiday (Labor Day)), but if you are patent holder and a nullity complaint is served on you anytime now, then the six-month target applies.

Yes, it's merely a target, not a rule. You can't get an infringement case stayed only because the Federal Patent Court takes longer. And six months is typically quick enough for main proceedings, but doesn't solve any problem in fast-track preliminary-injunction proceedings.

If a patent is less than nine months old, it can still be challenged before the patent office (usually the European Patent Office). In that case, one cannot file a nullity suit yet. It is an oversight--due to incompetence by too many of the people involved--that the "reform" bill doesn't address this problem. The Federal Ministry of Justice realized this when it was too late, so the measure got enacted anyway, but there is a plan to publish a "bugfix" at some point.

Even in those cases in which the six-month target applies, what good it will do? I'm very, very skeptical.

I actually have a lot of sympathy for the judges over at the Federal Patent Court. Those "reform" advocates complained about how long it takes until those nullity complaints get adjudicated, but that's because of the court's caseload. Granted, the Federal Patent Court could decide more cases if it reduced the number of judges on a nullity panel from 5 to 3 and/or didn't require every single judge to write an opinion for internal purposes only the per curiam gets published in the end). But that's not the judges' fault either.

Defendants to infringement lawsuits must present their nullity action at the time of responding to the infringement complaint (in order for the infringement court to consider it). From service of the nullity complaint, patent holders have two months to respond in defense of their patents. That period was often extended, sometimes up to five months, and now the Federal Patent Court is going to be extremely reluctant to grant extensions. That will also apply to the reply briefs that nullity plaintiffs submit.

The Federal Patent Court will, therefore, have a pretty developed record in front of it early on. But will it then actually render preliminary opinions that are going to help the infringement courts as they have to decide on whether to stay a case pending a parallel nullity action?

Even the six-month target isn't legally binding, but time is at least measurable. What simply cannot be measured is the quality of what the Federal Patent Court will deliver at that early stage.

That court won't all of a sudden have far more judges. It can't do magic just because of that new § 83 PatG setting an insanely ambitious target. With the old timeline, about half of all cases never reached the point at which the judges even had to seriously assess the merits: disputes often got settled before. Now the court has to form an opinion--albeit only a preliminary one--on virtually 100% of all cases, and on a very short timeline.

The predictable net effect is that the Federal Patent Court's preliminary opinions will simply be less helpful than in the past (where they came down at a much later stage). There is no hard and fast requirement that those preliminary opinions must actually indicate in which party's favor the court is inclined to rule. In fact, the very § 83 PatG merely says that the court shall inform the parties at the earliest stage possible of "aspects that will foreseeably be particularly relevant to the decision or serve to focus the oral hearing on the outcome-determinative questions." In other words, those preliminary opinions don't have to be opinions. Acctually, they aren't even called preliminary opinions in German: the more literal translation of "Hinweis" is closer to "notice."

All that the Federal Patent Court has to do in order to reach the (non-binding) six-month target is to lay out the agenda. It doesn't have to decide on claim construction at that stage, nor does it have to express an opinion as to whether the challenged patent was anticipated by a given prior art reference or doesn't involve an inventive step over a combination of prior art references. The court can just identify what questions are in dispute between the parties. That's it.

Those advocating "reform" wanted fast food, and fast food--not gourmet food--they shall get.

Is that going to assist the infringement courts (which are in a position to identify the bones of contention by themselves)?

Is that going to result in more stays of infringement proceedings?

Are the judges of the Federal Patent Court going to be forever grateful to the automotive industry and Big Tech for having called into question their efficiency and for having lobbied for something that just puts unreasonable pressure on them?

No, no, and no.

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Injustice is a built-in feature of Germany's bifurcated patent litigation system -- it would be unconstitutional in other countries

I am presently researching the most appalling miscarriage of justice that ever occurred in a German patent case: dozens of people lost their jobs over a patent--held by a publicly-traded U.S. corporation--that later got invalidated by the Federal Patent Court of Germany (a problem commonly referred to as the "injunction gap"). That patent-in-suit is either (if construed broadly) clearly invalid or (if construed narrowly) not infringed by the accused product, but could not reasonably be held valid and infringed at the same time. The case raises questions not only about the outcome but also about the reasoning and the circumstances that led to it. There's even a secondary question that reminds me of why Federal Circuit Chief Judge Rader resigned. But as the issues are so very serious, and the fallout from the facts being published might be massive and lasting, I'm making every humanly possible effort to analyze the matter with utmost diligence. That's why it's too early to provide names, but when the time is right, I will. The case number contains "39."

Germany needs patent reform badly. The German patent litigation system is not just broken: it was ill-conceived and it's been prone to abuse all along, but abuse has become so rampant that the time is ripe for change. The situation is unsustainable, and the system doesn't really deliver justice.

Right now there's only one leading German patent infringement court of first instance that I believe does a stellar job under the circumstances, and that's the Landgericht Mannheim (Mannheim Regional Court). Many years ago I thought the court was too plaintiff-friendly, but by now it's my favorite one. To a far greater extent than their counterparts in other German venues, the Mannheim judges--whose understanding of technical issue is unsurpassed--have realized just how irresponsible it is to let patent holders enforce invalid patents all the time. In Mannheim, there are judges who deserve an honorary doctorate in (at least) radio frequency electronics and have the expertise to figure out when a patent is likely invalid as granted, coupled with the backbone to stay such cases (while we're on this subject, I found out they recently also stayed one Broadcom lawsuit against BMW and one against Daimler, both over non-standard-essential patents). It will be interesting to see how they address the issue of component-level licensing in Nokia's automotive SEP cases.

The appeals court in Munich also impressed me on a couple of occasions this year, but can't really solve the problem that too few cases (only about 10%, which is an insanity considering that the vast majority of patents are invalid as granted) get stayed by the lower court there pending a validity determination. Dusseldorf--where the aforementioned tragedy occurred--is a near-total disaster at both levels, except on certain FRAND issues, where it's recently been a thought leader and more balanced than ever. Fortunately, Dusseldorf is a slow venue, which is why the kinds of cases I watch hardly ever get filed there.

As part of my research into the (most likely) unprecedented miscarriage of justice mentioned further above, I've come across a symptomatic decision by the Federal Court of Justice, the top German court for patent infringement cases (as only a very few issues, such as due process, go up to the Federal Constitutional Court). The Bundesgerichtshof (Federal Court of Justice) decision in the Kreuzgestänge (cross-linkage) case is nothing short of a declaration of structural and moral bankruptcy of the German patent litigation system. It's a mystery to me how one of the five judges who reached that decision could heap tons of praise on the German patent judiciary with a straight face in a closed-door government meeting in May instead of advocating much-needed reform.

In that case, the Federal Court of Justice pronounced the following doctrine:

"The court adjudicating a patent infringement lawsuit has to independently construe the patent-in-suit and neither legally nor factually bound to this Court's claim construction in a nullity [= invalidation] action relating to the same patent."

Let me provide some context on bifurcation first:

• Unless a patent is so fresh it can still be challenged at the patent office (a scenario I'll ignore for the remainder of this post), one needs to bring a validity challenge before the Federal Patent Court of Germany. That's the court of first instance for nullity (= invalidation) actions.

• The Federal Patent Court is typically far slower to resolve a nullity action than the Munich and Mannheim regional courts--and even sluggish Dusseldorf--are to rule on infringement. In the infringement cases, defendants can merely seek a stay pending resolution of (or a key milestone in) the parallel nullity action, but they don't have a full invalidity defense. The decision on a stay is based on some superficial (summary) analysis. The most problematic part is that the courts are largely receptive to non-novelty arguments but not obviousness contentions (and when they do evaluate obviousness, all but Mannheim apply an unreasonably high standard).

• From a Federal Patent Court decision on a nullity complaint, parties can appeal (of right) to the Federal Court of Justice. However, infringement determinations by a regional court are appealed to a higher regional court (in Munich and Dusseldorf, cases stay in the same city; from Mannheim, they go to Karlsruhe). In most cases, that's the end of the journey for infringement cases, though the higher regional courts sometimes allow a further appeal to the Federal Court of Justice--or, if they don't, one can bring a Nichtzulassungsbeschwerde, which is practically the equivalent of a U.S. cert petition (a request for top-court review) and denied in most cases.

• If the infringement case is brought in Munich or Mannheim, a nullity action will rarely reach the Federal Court of Justice (second nullity instance) soon enough that the above-cited doctrine would play a role. In Dusseldorf, it's more of a possibility, but even in Munich and Mannheim/Karlsruhe there might be an infringement determination by the appeals court after the Federal Patent Court ruled on validity, however, practically only imaginable if the nullity action was launched as a pre-emptive strike ahead of the infringement complaint or if the patent previously got challenged by another party.

Everywhere else in the world, there's a basic rule: you must apply the very same claim construction to the infringement analysis and the validity determination.

Only one country does it differently, and that's Germany.

The result is that a patent holder may benefit from a broad claim construction in the infringement proceeding and a narrow one with respect to validity. The system is (deliberately) asymmetrical: A defendant would never ever benefit, as the above-cited doctrine relates to a case where the nullity action has been fully resolved (all appeals--just one available anyway--exhausted) and the patent has been upheld (otherwise the infringement case would also be terminated immediately).

The Federal Court of Justice explained that--and this is per se correct--the infringement proceeding, if slower, may actually result in facts entering the record or legal theories being advanced that warrant a deviation from the (earlier) claim construction in the nullity action. That is conceivable, but the problem is that they drew a conclusion that results in the asymmetry I just outlined: if the infringement court finds that the claim construction should be broader than the one used in the (concluded) nullity action, the defendant can't get a new validity determination.

It's a tilted playing field. It's all meant to give leverage to those owning patents that should never have been granted in the first place. It's high time the legislature enacted reform.

If Congress wanted to introduce bifurcation in the U.S. by depriving defendants of a full invalidity defense, and if it then promulgated a rule allowing an inconsistency that can only benefit those enforcing--but never those defending against--patents, I'd predict that the Supreme Court would hold it unconstitutional. The incurable inconsistency of rulings would possibly be sufficient grounds for a holding of unconstitutionality--but, at a minimum, the asymmetry of the inconsistency's impact would be. Even Germany's Federal Constitutional Court might arrive at that conclusion, but it's unlikely that a challenge will be brought anytime soon--and even if it happened, that court is nowhere near as strong and principled as the SCOTUS.

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Judge denies motion to preclude Oracle from arguing Google's Java copyright infringement was willful

Judge William H. Alsup of the United States District Court for the Northern District of California has just denied a Google motion to preclude Oracle from arguing at next year's retrial that the search giant's infringement of Java copyrights (through incorporation of the declarations of 37 Java API packages into Android) was willful. In its opposition to Google's motion, Oracle had pointed to a particularly "expressive" piece of evidence: a Google-internal email according to which one of its key Android developers found Android's original Java libraries "half-ass at best" and identified a need for "another half of an ass."

The federal judge sees two legal reasons for which Google's motion couldn't succeed. Willfulness would have a bearing on the deduction of certain costs from profits that would have to be disgorged. Should Oracle, however, elect to seek statutory damages instead of, for example, a disgorgement of profits, then up to $150,000 per work infringed, as opposed to the standard maximum of $30,000, would be available. No matter how unlikely Google (and presumably many observers) consider a later Oracle choice to seek statutory damages, Judge Alsup interprets the law as preventing his court "from compelling Oracle to elect its measure of damages early on."

But the outcome isn't all bad for Google. The good among the bad from Google's perspective is that Judge Alsup has simultaneously decided that the trial would be bifurcated. The jury would firstly rule on Google's "fair use" defense without being briefed on Oracle's damages theories; then, if Oracle prevails (which I'm sure it will), damages and willfulness evidence will be presented in the second phase of the trial.

After a "fair use" finding, the next factual issue for the jury to decide will be willfulness. Thereafter, depending on the outcome, cetain damages theories may or may not be presented.

This approach means Google avoids its worst-case scenario, which would have been for the jury to hear about evidence such as the second "half of an ass" before making a decision on the "fair use" defense. I don't know how Google and its lawyers feel about this, but I wouldn't be surprised if they were actually rather pleased. They might have known all along that it was (at best) a long shot to try to avoid any willfulness discussion, so this here may be the best outcome they could have realistically expected.

For now, it appears that Google will be able to present some evidence and argument relating to its equitable defenses. Oracle might use some of the evidence that also has a bearing on willfulness to counter Google's claims that it relied on certain public statements by Sun. If not, Oracle would be substantially disadvantaged as a result of Judge Alsup's pretrial decisions.

So I expect to see some fights further in the process over which pieces of evidence that relate to willfulness are admissible as evidence in the first trial phase anyway (because of some other kind of probative value).

It's worth noting that Judge Alsup was much less concerned back in 2012 about a jury hearing more evidence than necessary. At the time he decided to put Google's defenses, especially "fair use," before the jury even though he ultimately held the infringed declaring API code non-copyrightable (which, as everyone knows, the Federal Circuit reversed and the Supreme Court declined to even take a look at). If he had made his finding before the jury trial, and if it had been upheld (in a parallel universe), the first jury would never even have had to think about "fair use." But this remand is different in some respects, including this one.

A key issue to decide will be whether the court-appointed expert from the first trial, Dr. Kearl, can still testify even though he has in the meantime done work for Samsung, a Google Android partner. I would be extremely surprised if a judge who showed concern in 2012 about the court, including appeals courts, being potentially influenced by bloggers now had no problem with a court-appointed expert--who undoubtedly and massively influences the court and the jury--being aligned with one "camp." I can't imagine that we'll see Dr. Kearl appear at next year's trial, but a formal decision has yet to be made.

Here's the order:

15-09-18 Order Denying Google Motion to Preclude by Florian Mueller

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Draft rules for European patent court: injunctive relief an automatic remedy for infringement

When then-U.S. Secretary of Defense Donald Rumsfeld made a distinction between the "Old Europe" and the "New Europe" (including countries like Poland), there was a lot of (understandable) outrage. Unfortunately, some of the people shaping Europe's patent policy are now pushing for a Stone Age approach that makes patent injunctions a given in any case in which an infringement is identified, more than eight years after the eBay v. MercExchange ruling by the U.S. Supreme Court and also running completely counter to the tradition of several European jurisdictions (such as the UK and the Netherlands) in which judges have enjoyed significant discretion concerning patent remedies.

At a time when U.S. case law has upped the ante for patent trolls in limited but useful respects and U.S. lawmakers (now that the Republican Party holds a majority in both houses of Congress) are preparing more anti-troll reform legislation for 2015 (which President Obama will almost certainly sign), Europe is going in the completely opposite direction. And while this was not enough, there had at least been some temporary improvement in the spring: the 16th draft rules (the draft before the latest one) at least contained some language reminiscent of the balance-of-harms eBay factor.

While I'm not involved with the related lobbying efforts (I haven't done any lobbying in more than seven years), I strongly suspect that companies with a failed or declining operating business in the ITC space like Nokia and Ericsson are responsible for this. I've also heard through the grapevine that a German official (from the Ministry of Justice, not a judge to be clear) has been a key proponent of troll-friendly rules.

I'm very surprised that the industry coalition that first raised concerns 14 months ago and reinforced its message earlier this year hasn't spoken out yet on the latest (17th) draft rules of procedure for the UPC, but it also appeare a bit slow in the past, though maybe it will still get something done in time for next Wednesday's official hearing in the German city of Trier.

Considering that the previous draft represented at least a step in the right direction, I was like shell-shocked when I read the following passage from the official explanatory notes for the latest draft:

"Where the Court finds an infringement of a patent it will under Article 63 of the Agreement give order of injunctive relief. Only under very exceptional circumstances it will use its discretion and not give such an order."

That's part of the explanation of the deletion of Rule 118.2, which referred to eBay-like considerations. So the intention is that all infringements will result in inunctions except "under very exceptional circumstances." Even "exceptional" would mean "very rarely," but "very exceptional" means "hardly ever."

There are cases in which injunctive relief is the most appropriate remedy for patent infringement. But many of today's technology products are so multifunctional that unlimited access to injunctive relief will give patent holders undue leverage. For example, if Mercedes, BWM or Audi had to stop manufacturing and distributing an entire car only because of a need to work around a patent covering a very minor feature of the navigation system, the cost of complying with a court order would far exceed the true value of the asserted patent. That discrepancy invites arbitrage by trolls.

Those who favor such rules don't work to protect innovation or to strengthen law enforcement. They may mean well (at least for their profession, though I'm not sure they even have the best in mind for the economy at large), but at the end of the day they pave the way for rampant abuse with disastrous economic consequences.

Europe has an innovation problem--Nokia is a good example. If Europe now tries to just strengthen patent enforcement for the losers in the marketplace (Nokia being the most extreme example), the net effect is not going to be more innovation. Instead, even more European innovators will emigrate to Silicon Valley.

While the deletion of Rule 118.2 (which should not only have been kept but even strengthened) is disconcerting, there is now some (but still very insufficient) progress in a related context--bifurcation. Rule 40 now says that if an infringement hearing is scheduled and an infringement case is not stayed despite an ongoing revocation action, "the judge-rapporteur of the panel of the central division shall endeavour to set a date for the oral hearing on the revocation action prior to the date of the oral hearing of the infringement action."

Obviously, "shall endeavour" is pretty weak, and the explanatory notes make this even clearer:

"New Rule 40(b) will not to acceleration in all cases where counterclaims for revocation are referred to the central division -- only cases where the parallel infringement action is not stayed will be accelerated; in practice, the synchronisation of the calendars remains within the discretion of the judge-rapporteur ('shall endeavour')."

(emphasis of "all" and "not" in original)

This is a step in the right direction but still unacceptable because it means parties to a dispute will have to negotiate a settlement without the defendant knowing for sure that the invalidity defense will be adjudicated before an injunction issues. The "injunction gap" is a real issue as I showed in my study of the final and preliminary outcomes of 222 smartphone patent assertions: there was not even one situation in all the German cases among the lawsuits I analyzed in which an infringement proceeding was stayed and a patent later upheld, but there were multiple cases in which a patent later invalidated by the Federal Patent Court of Germany was enforced for an extended period of time in each case (for example, Motorola got to enforce a synchronization patent against Apple for 19 months).

My analysis was smartphone-focused, but other studies with a broader focus have also shown that most European patents are actually invalidated or narrowed when they come to judgment in the Federal Patent Court of Germany. Last month I blogged about a study by a leading German IP law firm that raised the question of whether patents are merely "paper tigers." A few days ago an English translation of that study was published on the Bardehle firm's website.

In closing I'd just like to clarify that I'm not fundamentally opposed to the UPC or the Unitary Patent. In fact, my app development company filed three PCT applications this year and would love to choose "Unitary Patent" as a target jurisdiction for each of them at the end of the EPO process following the 31-month international phase. And apart from whether the Unitary Patent legislation will be ratified in time or not, I will want those patents to be enforceable Europe-wide. But true innovators need a fair chance to defend themselves against meritless assertions. I'd rather have to convince a court that an infringement causes irreparable harm to my business and that the covered feature is not just a minor feature of a multifunctional product, and wait for the outcome of a revocation proceeding before I obtain injunctive relief, than have to negotiate with countless patent trolls against the background of an unbalanced, backwards-oriented framework.

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