Showing posts with label Innovation Policy. Show all posts
Showing posts with label Innovation Policy. Show all posts

Thursday, July 13, 2023

Huawei emphasizes balance and collaboration, announces various patent royalty rates at annual innovation & intellectual property event

This is the third year for me to watch Huawei's annual innovation and intellectual property event, and I found the 2023 edition that was held today particularly interesting. Instead of one very long blog post, I'll talk about the company-specific part today and will reference the event again in an upcoming post on statements by various high-profile patent judges (former Federal Circuit Chief Judge Randall R. Rader--who was at today's event--and currently actives judges Mr Justice Marcus Smith of the UK Competition Appeal Tribunal and Judge Dr. Klaus Grabinski of the UPC) that should be considered in connection with the European Commission's proposed regulation on standard-essential patents (SEPs).

The SEP licensing landscape is polarized. On one end of the spectrum, pure licensing firms are found, and on the other end, there are net implementers who even if they own SEPs themselves are primarily interested in devaluation. Net licensors who also have a product business can relate to either perspective, but their surplus from patent licensing tends to be substantial. If any of you can point me to a second example, please do, but to the best of my knowledge, there is no major player--other than Huawei--whose inbound and outbound patent licensing activities are pretty much in an equilibrium at this stage.

Huawei generated US$560 million in licensing revenue during the course of 2022, but also spent pretty much the same amount on license fees covering its products over the course of the last two years as it collected. In the past, the ratio was actually 3:1 (inbound:outbound licensing), but then came certain geopolitical developments that have practically excluded Huawei from particular markets. Still, historically Huawei is a net licensee, even if it accidentally attained "net licensor" status (and only by a razor-thin margin) late last year according to a media report.

I find it not only intellectually dishonest, but frankly outrageous and strategically counterproductive when those seeking to devalue SEPs treat Huawei as an enemy, be it in statements to the media or on conference panel. It's a binary "you're with us or against us" attitude, motivated by the convenience of "cheap shots" at a bogeyman. In reality, no company--if it weren't for geopolitical reasons--is better-placed to serve as a bridge between net licensors and net licensees than Huawei with its unique parity between inbound and outbound patent licensing activities. And if you asked them, I'm sure they'd rather become a net implementer, by the traditional of factor of three, as soon as humanly possible.

At today's event named "Bridging Horizons of Innovations 2023 -- Sharing Intellectual Property, Driving Innovation", Huawei's chief legal officer, Dr. Song Liuping, made it very clear: because Huawei also implements standards, it has "a balanced approach" and is "all for reasonable fees, and absolutely against excessively high royalty rates because it would impede competition and hold back SMEs because SMEs normally don't own any SEPs."

As I mentioned geopolitics, at least the institutions of the United Nations maintain a constructive dialog. Today's event included a video address by Tomas Lamanauskas, the Deputy Secretary-General of the International Telecommunication Union.

Collaboration was another theme (also in that ITU keynote). Huawei reached approximately 200 patent license agreements without the need to resort to litigation (though of course there have been and will continue to be a few cases where it couldn't be avoided). When the moderator asked why they wanted to share their technologies instead of trying to monopolize markets, Huawei's IP chief, Alan fan, had to laugh at the notion of monopolization and replied: "It is not our goal to monopolize. We benefit from competition."

Mattia Fogliacco, the president of patent pool administrator Sisvel, was one of speakers on a discussion panel at the Shenzhen event. He stressed that "the only forward is through a collaborative approach, we must work together and not against each other." And with a view to standards resulting from the contribution of technologies by all companies participating in the standards development process, Mr. Fogliacco asked this rhetorical question: "When there's no investment, how can technologies be good?" In that vein, Huawei IP chief Mr. Fan explained "the virtuous cycle that sustains the industry" where patent licensing income is invested in the development of the next generation of technologies.

While that is not my focus now, the history of this blog is actually that it started with a focus on open source, thus the name (FOSS means "Free and Open Source Software"). Interestingly, Huawei also touted its contributions to open-source software development, being the number one open-source contributor from Asia.

Huawei's press release on today's event notes that royalty rates were announced for the company's different patent license programs. Prior to doing so, however, Huawei showcased some of its groundbreaking innovations such as General Obstacle Detection for autonomous vehicles (i.e., being able to identify obstacles even of a novel nature), the transition from stereo to true 3D audio ("Audio Vivid"), and its contributions to 5.5G, the next major evolution of the 5G cellular standard. Then they announced various royalty caps:

  • Mobile handsets:

    • 5G: $2.5/unit

      4G: $1.5/unit

  • WiFi:

    • consumer grade WiFi 6 product: $0.50/unit

  • Cellular IoT:

    • IoT-centric devices: 1% of net selling price, capped at $0.75/unit, for categories NB, M, and 1; category 4+ to be discussed individually

    • IoT-enhanced devices: from $0.30/unit for Category NB to $1.00/unit for Category 4+

The emphasis today was on innovation, not on monetization, but obviously those using patented inventions must pay license fees. Huawei licenses bilaterally and through pools. I believe we'll hear more about that between now and their next annual innovation & IP event.

Wednesday, June 8, 2022

Huawei presents itself as unstoppable innovation engine, striving to balance product business and patent licensing interests, expecting more revenue from automotive licensees

Sometimes a coincidence is about as timely as coordination would have been. About a week before Huawei's major IP event that took place earlier today, the German Patent and Trademark Office issued a press release on China having overtaken the U.S. in terms of the number of digital communications patent filings, which is perfectly consistent with European Patent Office statistics. Huawei is the #1 company in that field. While I never described patent counts as the perfect metric (what I'm most interested in is litigation results wherever available), they are yet more meaningful than unempirical opinion papers by economists that incredibly claim to have the definitive answer without evaluating a single patent, much less a statistically representative sample of patents.

Huawei's Chief Legal Officer Dr. Song Liuping (note that this is the Chinese order with the family name before the given name) explained in today's opening address that Huawei increased its R&D investment to 142.7 billion yuan (more than US$21B) last year, amounting to 22.4% of the company's total revenues. Both the absolute amount and the relative share represent 10-year highs. Those numbers are perfectly consistent with the EU Industrial R&D Investment Scoreboard, according to which Huawei has the world's second-largest R&D budget. A significant part of that R&D investment (approximately 15%) relates to foundational research.

Dr. Song noted that Huawei filed more than 10,000 patent applications in each of the last two years (another record high for the company). Huawei filed more than 3,500 patent applications (more than any other company, with Samsung a close second) last year with the European Patent Office alone, and is the number 5 patent filer with the United States Patent & Trademark Office.

You can actually see the number of European patent applications, with only the first digit being hidden (but easy to infer from the other parts of the column chart), behind Huawei's IP Chief Alan fan in the picture the company provided along with its press release on today's event:

Just like so many others with an interest in corporate patent strategies, I've been asking myself in recent years what implications the trade war started by former president Donald Trump and continued by the Biden Administration was going to have for Huawei's IP licensing business. IAM interviewed Mr. Fan a few months ago, and even the headline (pretty much all that one can find in front of the paywall) says Huawei's IP department intended to grow licensing revenues but would not lose sight on the goal of supporting the company's business units. At today's event, Mr. Fan again noted that Huawei, notwithstanding its strong patent portfolio, was still making products (large numbers of them, in fact), so its IP strategy has to be coordinated with the business units.

In the Q&A session toward the end, Dr. Song gave a thoughtful answer to the question of what he regarded as the greatest challenge he faced in his 20+ years at Huawei--an answer that has to do with the hostile environment I just mentioned. Dr. Song said the politicization of business, legal, and technical questions was a major challenge, and one that he undoubtedly deems regrettable as it unnecessarily complicates the quest for solutions that serve the economy at large and society.

What I was primarily trying to figure out today was what Huawei's intentions and priorities relating to its formidable patent portfolio are likely going to be. I got the impression that Huawei's positions are centrist. Neither are they going to be another Apple and pursue the devaluation of standard-essential patents (SEPs) nor are they going to start a suefest. I'm pretty sure we're going to see them resolve most situations through licensing negotiations, but they will likely enforce if it can't be avoided. In the latter case I wouldn't want to find myself on the receiving side.

One industry from which Huawei clearly expects increasing patent licensing revenues is automotive. This much they made clear today. Last year, a SEP license agreement between Huawei and a Volkswagen supplier became known. Huawei is the most significant SEP holder not to license its patents to car makers through the Avanci pool (for now, at least). Huawei has entered into component-level agreements. The fact that the automotive sector was specifically mentioned today suggests to me we'll hear about more bilateral license deals between Huawei and either car makers or their suppliers.

Huawei had some interesting guest speakers with WIPO and EPO backgrounds, a former diplomat who urged cooperation between Western and Eastern countries, one of the elder statesmen of Germany's IP law community (Professor Heinz Goddar, a Boehmert & Boehmert partner), and--quite interestingly--Mattia Fogliacco, the President & CEO of Sisvel, a globally active patent licensing firm and patent pool administrator. Huawei's Alan Fan stated the company's intent to participate in patent pools (as IAM--again, sorry for the paywall-noted in its report on today's event). But there has been no announcement of Huawei's participation in a Sisvel pool unless I missed something. Mr. Fogliacco stressed that a patent pool primarily has two tasks to fulfill: to ensure that the patents in the pool represent true innovation, and to strike a balance between licensors' and licensees' interests particularly with respect to royalty rates.

"Balance" was the keyword here. It's easy to think that a company with a strong patent portfolio, substantial licensing revenues, and an occasional need for enforcement is primarily interested in patent monetization. But the reality is often a lot more nuanced. Despite the impact of the trade war, Huawei is still a major product maker. And even companies like Qualcomm, Ericsson, and Nokia get sued by patent holders more often than one might think (either directly or in the form of patent assertions against their customers). Case in point, an IP Watchdog article just criticized a U.S. court ruling in a case where Qualcomm had to defend itself.

Huawei is a licensor as well as a licensee, a SEP holder as well as an implementer of standards, and that was unmistakably reflected by the content, topics, messages, and the speakers at today's hybrid (in-person plus online) event. There wasn't a particular announcement oaf a license deal or partnership. Instead, the part I personally liked best was when three very young inventors--almost fresh out of university--presented the innovations they created at Huawei, such as (now quoting Huawei's press release) "an adder neural network that significantly reduces power consumption and circuit area to a game-changing 'optical iris' that provides a unique identifier for optical fibers." Now I'm waiting for announcements relating to license deals and the participation in patent pools--and enforcement action though they appear to try hard to avoid those in the first place.

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Thursday, November 11, 2021

Unease growing in Europe over 'America First' agenda behind O-RAN initiative: telecommunications infrastructure treated as geopolitical football

Yesterday was the first of two days of a conference organized by the European University Institute's Florence School of Regulation on Transatlantic Relationships in Innovation Policies: Converging Agendas?

I tuned in because "IP and standard-setting" (with a focus on 5G) were announced as key topics. However, that first day, apart from a keynote by Qualcomm's Alex Rogers (in which he called out Apple on taxing app developers while complaining about SEP royalties), was largely about technology-related trade policy in general, and the O-RAN initiative (for modularizing telecommunications network infrastructure) was actually the key topic.

About two months ago I discussed the implications of O-RAN for patent licensing and litigation. Since then, I've seen two articles in German media that reflect European skepticism of OpenRAN:

  1. Two weeks ago, Frankfurter Allgemeine Zeitung published an opinion piece on O-RAN by Professor Torsten Gerpott, who teaches strategic and telecommunications management at a German university. He does not consider subsidies for O-RAN projects a wise use of German taxpayers' money as it does nothing to increase the country's digital sovereignty. In Professor Gerpott's opinion, Open RAN is more of a geopolitical football than a solid technological concept. To that expert it's pretty clear that open interfaces do not make an entire network infrastructure open: if you connect multiple black boxes over open standards, you need more energy and still depend on those black boxes--and on a systems integrator, which is a similar dependency as a single-vendor relationship. In other words, it's not as "open" as the name suggests, and it's certainly not the same as relying on 100% open-source modules.

    Professor Gerpott mentions the absence of evidence that "open" network concepts have enabled major new entrants to compete in infrastructure markets. But in any event, he says, breaking up network infrastructure with O-RAN is "not necessarily desirable from an EU point of view as two European vendors--Ericsson and Nokia--have a strong market position." Instead, the O-RAN architecture would benefit U.S: tech companies and platform operators that do not play a major role in the current RAN market.

    The op-ed concludes that O-RAN is not a "(r)evolutionary network architecture driven by technical ideas" but rather "a geopolitical approach in order to shut out Chinese vendors and strengthen U.S. tech companies." The headline of that article warns against "false hopes" connected to Open RAN.

  2. Just two days ago German tech news website Golem reported on statements by Vodafone's chief technology officer, who said Vodafone did not want to "prematurely commit" to Open RAN. Vodafone is actually running some Open RAN trials in a few European countries, but is concened about "losing our two major vendors" Nokia and Ericsson. The CTO said Vodafone "does not want to shift the emphasis to North America[n vendors]."

    A Nokia executive who spoke at the same event (hosted by the German ministry in charge of infrastructure) said that "despite lots of progress a lot remains to be done" concerning O-RAN, as some technical hurdles have yet to be overcome.

Against the background provided by those two articles, some of what I heard yesterday at that transatlantic trade policy conference was easier to understand:

  • The European Commission's head of unit for trade relationships with the USA and Canada, Matthias Jørgensen, didn't specifically mention O-RAN. He did, however, note that the U.S., Europe and other major players on the global stage all want digital sovereignty (yet also aspire to be world market leaders). And he noted different perspective on, for instance, platform regulation, though I think those differences may be greater between the executive governments on both sides of the pond than between lawmakers (for example, the "Open App Markets Act" in the U.S. won't necessarily be weaker than the EU's Digital Markets Act).

    Mr. Jørgensen noted that the EU had a better relationship with the Biden Administration than its predecessors, but that "America First" was still the U.S. approach to trade policy.

    I find it hard to see how the EU would embrace O-RAN, a Trumpian initiative that the Biden Administration appears to be supportive of, given the damage it might do to Ericsson and Nokia only to create opportunities for certain U.S. hardware makers and cloud operators like Amazon (which also had a speaker at that conference).

    Also, the European Commission is known to be involved with O-RAN at the ETSI level, and it is the Commission's responsibility to consider all implications of a proposal like O-RAN, including the security aspects of relying on (non-European) cloud service providers.

  • Deutsche Telekom's EU affairs VP Roland Doll sounded a bit like Vodafone's CTO in the Golem article I mentioned further above. It looks like Deutsche Telekom, too, would want to ensure that European vendors continue to be major players in the telecommunications infrastructure market. Deutsche Telekom is concerned that the only major cloud service providers in the world are American (Amazon, Microsoft, Google), and Europe cannot compete in that field.

It's easier to see why Europe isn't enthusiastic about O-RAN than to argue that Europe stands a lot to gain from it. As long as that is the situation, there is even a risk of a split, with different world regions potentially developing their own standards and relying on their own vendors.

This could have profound implications, ultimately even for cellular standards, so I'm going to keep an eye on developments related to O-RAN.

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Friday, October 22, 2021

STUNNING: High-ranking German judge publicly states that patent law may do more harm than good, but critics would have to lobby for fundamental reform

Yesterday I reported on the first panel of the CIPLITEC online conference on German patent reform, where it became very clear once again that injunctions will remain the customary patent remedy as I had been predicting all along. The conference is continuing today, and what just happened this morning was nothing short of astounding.

In a virtual panel discussion, Judge Fabian Hoffmann of the patent-specialized 10th Civil Senate of the Bundesgerichtshof (Federal Court of Justice) replied to certain infringer-friendly positions taken by others on the question of how punitive the compensation owed by an infringer to a patentee should be in cases in which an injunction is denied or, far more likely, tailored by means of a use-up or workaround period. Here are the most amazing parts of what he said:

  • Judge Hoffmann acknowledged that "patent law may indeed do more harm than good."

  • He said he could see why some would like to see "more competition."

  • He even went as far as to say thathe was "politically with [those who voice such demands]."

  • Having said that, he explained--and I concur with him--that this year's German patent reform bill is not designed to bring about fundamental change.

  • Judge Hoffmann not only followed but even contributed to the legislative process, such as by participating in a parliamentary hearing (my report on that one did not mention him as I focused on other aspects than the ones he addressed). He recalled today that on the one hand there are academics and lawyers who claim that most companies would rather see a "more balanced" and "more moderate" patent enforcement regime, but at the said hearing--which I had accurately described as a total victory for reform opponents due to a miserable failure by pro.reform forces--there was a widespread consensus in favor of strong patent enforcement.

  • The result is that the legislative intent is clear: there was no political will to depart from German patent enforcement tradition. And that's the law that he as a judge has to apply faithfully (I'm paraphrasing him here, but not straying far from what he actually conveyed).

  • I've previously criticized the absolutely pathetic lobbying and campaigning effort on the part of pro-reform forces like German automotive industry association VDA, the misguided ip2innovate lobbying group, and Apple. It was a mix of amateurs, (in a very few cases) saboteurs, and people who meant well but could not get their companies or their (idiotic) industry associations to make the right decisions. They also had a budget that was not even 5% of what would have been needed to bring about serious change. You won't be surprised that Judge Hoffmann obviously wouldn't make statements like that. But what he said nevertheless validates my scathing remarks on that pro-reform lobbying effort. Judge Hoffmann told the audience that if they wanted to fundamentally rethink patent law, which may indeed be warranted even in his opinion, they need "a second reform" and will have to do what it takes to get a different outcome.

This is a lot of food for thought for some people, and I'd like to leave it at that for the time being. I'm going to continue to make the very same distinction as Judge Hoffmann made today: there's the question of what innovation policy is desirable, and there's the question of what the law--in its current form--says. There's the world in which some would like to live, and the world in which we actually live. The German patent enforcement system is going to be the same except that time and money will be wasted on proportionality arguments (mostly by defendants). There's room for lots of academic discussion, and parts of the CIPLITEC conference--with the greatest respect--were more about the trees than the forest. But patentees will still get the same leverage from bringing infringement cases in Germany as before. In fact, compared to where statutory and case law stood when the reform process began, patentees even have a lot more leverage now.

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Wednesday, March 17, 2021

Huawei's announcement of 5G license fee structure favors Apple, Samsung, while countering Nokia/Ericsson-style patent royalty stacking

To focus on just one number--$2.50 (per-unit 5G SEP royalty cap)--doesn't do justice to a bilingual event (video) that lasted more than two hours and featured such speakers as former WIPO Director General Francis Gurry. On the same occasion, Huawei released a 47-page White Paper (PDF). Among other things, it was interesting to hear that Huawei is one of the top three contributors to the Linux kernel. Yet we live in a world of ever shorter attention spans, so what made headline news yesterday was the announcement that "for every multi-mode 5G smartphone, Huawei will provide a reasonable percentage royalty rate of the handset selling price, and a per unit royalty cap at US$2.5."

Many of the questions reporters asked Dr. Song Liuping, Huawei's Chief Legal Officer, and Jason Ding, Huawei's IP chief, also focused on 5G licensing.

Due to a trade war started by the previous U.S. president, with Nokia and Ericsson constantly stoking the flames through lobbying, Huawei is restricted in its ability to serve customers in several major markets. Against that backdrop, I was a bit concerned that the Chinese company would become more aggressive in its patent licensing business. Figuratively speaking, I breathed a sigh of relief when I saw that--regardless of the political landscape--Huawei is still clearly in the camp of product-focused innovators. Rather than align its IP policies with those of Qualcomm, Ericsson, Nokia, or InterDigital, it's clear now that Huawei wants IP to be licensed in ways that enable innovation in smartphones, connected cars, and the wider IoT field.

Huawei is considered to own more actually-essential 5G patent families than any other company. I would summarize the message from yesterday's Forum on Innovation and IP Prospects in 2021 and Beyond as striking a balance: while Huawei doesn't have a "free lunch" or "zero-zero" cross-licensing strategy, it agrees with companies like Apple and Samsung that

  • the aggregate royalty burden on device makers should not be inflated by "royalty stacking" (a big part of that problem is, by the way, the excessive "privateering" practiced by Nokia and Ericsson, who feed the trolls all the time), and

  • cellular SEPs should not be used to tax other valuable components of innovative products, which is why Huawei's per-unit royalty cap is relatively low compared to the license fee demands made by companies with less (and sometimes much less) valuable portfolios. That cap suits makers of high-end smartphones, such as the two organizations I just mentioned.

Non-practicing entity InterDigital, which isn't even among the top contributors to 5G, wants up to $1.20 per 5G device (0.6% of a royalty base capped at $200). In connection with the Federal Trade Commission's and Apple's antitrust cases against Qualcomm, I've frequently criticized the chipmaker's royalty demand: for its SEPs, Qualcomm seeks to be paid up to $13 per unit (3.25% of a royalty base capped at $400). Nokia's cap is at €3.00, and Ericsson has been vague, potentially seeking a lot more than even Nokia.

Ex ante disclosures of maximum royalty rates provide much-needed transparency. Standard-setting organizations could require them, but patent monetization-focused member companies typically oppose making such disclosures mandatory.

Huawei's announcement definitely has policy implications. If a company with few 5G SEPs of its own took a position on royalty rates, it would be suspected of merely being interested in bringing down licensing costs (case in point, Qualcomm pointed to an Apple-internal presentation that made it a strategic goal to "devalue" SEPs). Huawei's IP chief Jason Ding said that Huawei wants to be a top contributor, but not ask for top royalty rates. This attitude is compatible with Apple's IP policies. It's also good news for the automotive industry (to which Huawei is a very significant supplier).

I offer a prediction: Huawei's $2.50 per-unit royalty cap will be mentioned a lot in the years ahead in 5G royalty disputes. I would not be surprised if, for example, Samsung pointed to that figure in its ongoing dispute with Ericsson. And if I were a device maker who'd have to defend against InterDigital, I'd argue that a reasonable per-unit royalty cap for InterDigital's patents is but a fraction of the $1.20 it wants, for a pretty small portfolio compared to Huawei's.

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Wednesday, February 3, 2021

Conservative politicians shouldn't join Greens and communists in calls for compulsory licensing of COVID/mRNA vaccine patents

This post is a departure from my blog's industry focus that I wouldn't have contemplated if not for the highly unusual circumstances we're facing in the COVID-19 pandemic. The scientific aspects of pharmaceutical patents are above my head, but that also applies to the heads of those politicians proposing compulsory licensing of such patents in the current situation.

I just became aware of a disconcerting statement by the chairman of the center-right European People's Party (EPP) group in the European Parliament, Manfred Weber MEP (Christian Social Union, CSU), quoted in a German newspaper article (my translation):

"If need be, admitted vaccines must also be made by others on the basis of compulsory licensing."

This is the same Manfred Weber who lent unconditional support to the EPP's Axel Voss MEP with respect to upload filters (EU Copyright Reform). In other words, he wants IP overenforcement against kids who upload videos from a private party to YouTube, with some commercial music playing in the background, but he wants to deprive the companies who made a miracle happen--the availability of multiple COVID-19 vaccines after such a short time--of their rights.

His party, the CSU, is the regional sister party (comparable to the Minnesota Democratic-Farmer-Labor Party vs. the Democratic Party) of Chancellor Angela Merkel and European Commission President Ursula von der Leyen's party, the Christian Democratic Union (CDU). It's unlikely that he would toss out such an idea if it hadn't at least been floating around in those circles.

The EU is obviously in deep-shit trouble. In yesterday's New York Times there was an article entitled Slow Pace of Vaccinations Pushes Europe Toward Second Economic Slump. The numbers speak a clear language: as of the start of February, Israel had administered at least one dose of a COVID-19 vaccine to almost 60% of its population, the United Arab Emirates to approximately 35%, the UK to approximately 15%, the U.S. to approximately 10%, and the EU only to about 2%-3%. As I explained early last month, the EU's purchasing decisions were wrong at any given point in time just based on then-available information (New York Times Coronavirus Vaccine Tracker)--and liability issues do not serve as an excuse, as it's simply a reality in a seller's market that not only prices but also other terms are impacted by the demand-supply discrepancy. And money could have solved the problem at the right time by enabling certain companies to invest in European manufacturing capacities early on--just what ex-president Trump achieved with his Operation Warp Speed program.

German and other EU politicians shouldn't make themselves ridiculous by sometimes arguing in the same interview that the U.S. can outvaccinate the EU because it's such a large country, and Israel does so because it's a small country. Some politicians sound like those communist leaders did in the late 1980s before the fall of the Iron Curtain.

The problem is not going to get solved anytime soon, though I was surprised by the good news regarding the Russian Sputnik V vaccine, which appears to beat all other adenovirus vector-based COVID vaccines by a wide margin by using a different vector for the second (booster) jab (and both vectors appear to be unharmful human adenovirus strains)--the EU may end up importing that one. Meanwhile, the virus keeps mutating at a pace that makes it hard to follow. Yesterday, for instance, the BBC reported that the UK just found "more coronavirus cases with 'concerning' mutations."

A crisis is a terrible thing to waste. The EU should learn its lesson and reform itself. Brexit has its first success story (outvaccinating the EU by a factor of 5), and the EU will make things only worse if it doesn't think things through. The Daily Mail was never the EU's best friend, but in this article the British newspaper quotes media from all over Europe, including some very EU-friendly ones, who concluded they can't defend the indefensible anymore with respect to the EU's temporary intentions to put border controls in place between the Republic of Ireland and Northern Ireland in order to enforce vaccine export restrictions (which are, by the way, the epitome of "vaccine nationalism" as opposed to people being all for a coordinated EU effort, but criticizing what went wrong).

Even to only toss out the idea of compulsory licensing in this particular context is an insanity.

In the tech sector, I'm against injunctive relief except maybe under the most egregious of circumstances. Just yesterday I stressed again that patent remedies must be proportionate. And I'm not ruling out at all that maybe, further down the road, some general mRNA-related patents might prove overbroad--and compulsory licensing might be needed on antitrust grounds, should there be a clear and present danger of only one or two companies ultimately being able to make that new generation of vaccines (and potentially other types of mRNA-based medications).

But in the current situation, there simply isn't an economic case for compulsory licensing of COVID-19 vaccine patents. (To be clear, patent remedies are only available after publication of the related applications, and COVID-19 is too new for anything to have been published yet, but there are some general mRNA-related patents and patent applications that BioNTech might be able to enforce already against anyone plagiarizing their COVID-19 vaccines.)

The cost of lockdowns and similar restrictions is so high that there's enough money to be made not only for the companies that invented the vaccines but also by those who merely manufacture them. The recent deal between Pfizer partner BioNTech and Sanofi (which invested in BioNTech two years ago) shows that solutions can be worked out at the negotiating table. It's not just about immediate revenue opportunities: every contribution to what may help to solve the COVID-19 problem generates political goodwill and nice publicity.

What governments should do is incentivize such partnerships by making offers that enable both the inventor and the manufacturer to be generously rewarded. There's this saying that you sometimes achieve more with a gun and a smile than with a smile alone. In this case, however, the solution is money, not governmental heavyhandedness like in a plan-based Soviet-style economy.

I have to stress again that what I just wrote was only about COVID-19 vaccines. I do very much believe in the compulsory licensing of standard-essential patents (SEPs), as most of my readers know. But there's a difference between a couple or a handful of patents reading on a COVID-19 vaccine, with enormous risks taken, and the hundreds of thousands of patents one could theoretically assert against a smartphone maker or automotive company--and no single one of which patents truly protects a major investment in research and development.

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Thursday, January 7, 2021

Stifling creativity, chilling innovation, and now even killing people: the EU needs to rethink its approach to industrial policy

With VaxGate, Brussels--as a metonym for the EU--is going through its worst credibility crisis ever, while Brexit is already a success story in one particularly important regard: the UK is outvaccinating the Continent. It's also a fact that British elite universities outperform their continental counterparts in global rankings.

Even EU-friendly mainstream media such as German newsweekly Der Spiegel now feel forced to talk about some of what's going wrong. Spiegel author Michael Sauga today criticizes the Merkel-Macron doctrine (to me, they're simply the Axis of Evil, or even the Axis of Death) that COVID vaccines be both developed and manufactured in Europe in order to become more independent from other economic regions. Just yesterday, the European Commission granted provisional approval to Moderna's mRNA-based COVID-19 vaccine, further to a recommendation by the European Medicines Agency. While Moderna's vaccine is already in use in the U.S., the EU clearly treated it as its lowest priority among the top six candidates, simply because it's an American company that didn't have much, if any, European manufacturing capacity at the time.

If I had to choose which of the vaccines to take today, and if I even had the choice, I'd presently--subject to what we'll learn throughout the year--prefer Moderna's vaccine. The only known issue with all those mRNA-based vaccines is that the risk of an anaphylactic shock is about 20-25 times higher than with conventional vaccines. I don't have any known allergies (there a few measurable ones, but so minor I don't even notice anything, such as when I eat hazelnuts), so I'm particularly unlikely to be that one person among 40,000 or 50,000 who would suffer an anaphylaxis. I'd just want to be under observation for 30+ minutes after the jab. What makes me feel better about Moderna's vaccine than Pfizer/BioNTech's is that it may be slightly more advanced. BioNTech hopes to make further progress this year to bring down the cooling requirements. With Moderna already being where BioNTech is trying to get, it's possible that Moderna's product is more mature. Both are 95% effective, though it remains to be seen how well they work against new mutations (for B.1.1.7, a gradual reduction of efficacy is possible, but for the South African mutation, it's not even clear whether the existing vaccines will work at all).

So the EU initially treated as a low priority the COVID-19 vaccine that may actually turn out to be the best of all, and has already turned out to be one of the first two to become available. For industrial policy reasons. One has to be highly unethical or simply deranged to let so many people die for some ill-conceived industrial policy.

When Merkel and Macron were just the Axis of Evil--not yet the Axis of Death--, they already did a horse trade that was unbelievably stupid: Article 13, which then became, after a renumbering, Article 17 of the EU Copyright Directive. It's still high on the EU Commission's priority list. The Merkel government primarily wanted something else: the news snippets tax. That's because German media giants had lobbied for it very hard. For France, however, upload filters were going to be the grand prize. So Merkel and Macron agreed to do both.

There's something I really, really wish to clarify here: I don't disagree that some smart regulatory approaches are needed to certain platforms that have become extremely powerful. In fact, some of what they're discussing in the EU with respect to "gatekeepers" makes a whole lot of sense, and a majority of the House of Representatives raised similar concerns. The question is, however, what will ensure a level playing field and what is just going to be negative on the bottom line, like cutting one's nose to spite one's face.

Upload filters stifle creativity. The right holders who benefit from it are collecting societies, and they are problematic in various ways. Ultimately, just like some overreaching data privacy rules, such a framework may even raise barriers to entry.

Some simple-minded, totally incompetent people came up with the idea at some point that copyright could have a redistributive effect favoring France and Europe as a whole. Of course, the collective European market share of copyrightable works found on Internet platforms used in Europe is far higher than the market share of European platform makers. So if you give copyright holders more leverage over the platforms, it means that far more money will flow in a certain direction than in the opposite one. But those Merkel-supported French idiocies, such as upload filters, are not well-thought-out. From a holistic perspective, they do more harm than good. They just please some lobbyists, and some fools.

It gets slightly more complex, but no less clear, in the automotive standard-essential patent (SEP) licensing context. In that case, there isn't even a clear French beneficiary such as copyright holders or Sanofi (which is going to get a lot of money for a vaccine research project that is otherwise a huge disappointment and failure so far). There actually would be French beneficiaries--car makers like Renault and automotive suppliers like Valeo--from the better policy alternative. But French EU fake news commissioner Thierry Breton is beholden to Nokia and Ericsson, probably just because he has a long history with them due to his own industry background (France Telecom).

Not only Europe's automotive industry but even more so the wider IoT industry would have benefited from allowing the European Commission's Directorate-General for Competition (DG COMP) to investigate Nokia's refusal to grant exhaustive component-level licenses to "all comers" from all tiers of the automotive supply chain.

The concept of "digital sovereignty" (which in this case means having European telecommunications infrastructure providers) could and should be separated from competition enforcement. Give them subsidies, or allow their national governments to do so. But don't let other industries--automotive and, more generally, IoT--suffer, especially when the vast majority of 5G patents aren't even owned by EU-based patent holders.

Ideally, industrial policy shouldn't influence antitrust enforcement. It's a reality that it often does, but if that's what you want to be the case, you at least have to think things through holistically. That doesn't appear to be a strength of people like Macron and Breton, and Merkel just follows them because she lives in an ivory tower and is detached from reality. A few years ago, she referred to the Internet as "Neuland" ("new land" or "unchartered territory"), which tells you all you need to know in this respect.

IP policy is industrial policy, but upload filters are insane. Competition enforcement should be principled, yet is often driven by industrial policy considerations, and whether you look at the merits of those complaints against Nokia or take an industrial policy perspective, the result would be the same: go after Nokia (and, by extension, Ericsson). And when it's about life or death, such as in the SARS-CoV-2 context, industrial policy almost literally kills people.

If the EU takes a smart and holistic approach to its Digital Markets Act/Digital Services Act initiative, and to competition enforcement in the app distribution context, its efforts may actually have a positive impact. But where things stand today, EU industrial policy, especially if devised by French politicians, all too often results in extremely stupid decisions. The EU can rely on many journalists failing to figure it out, or being ideologically biased and therefore unwilling to speak truth to power. In European media you find all those excuses that no one could foresee which vaccine research projects were going to be most successful when one would just have to compare the timeline of the EU's decisions (all of which are public) with the official progress reports of those projects (all of which are public, too, such as on the New York Times Coronavirus Vaccine Tracker). But ignorance, ideology, and spin-doctoring only do so much. Throughout this year, the EU's most miserable failure will become clearer and clearer. The decision makers in Brussels and their advisers will have realized by now that they've failed European citizens. Will they draw the necessary conclusions from it and do better in other areas?

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Thursday, March 26, 2020

Europe stands several times more to lose than to gain from condoning Nokia's refusal to license automotive suppliers

On both sides of the Atlantic one can watch interesting examples of "reverse protectionism":

Antitrust enforcement should simply be a question of legal merits. But the industrial-policy argument that some forces within the European Commission make in Nokia's (and, by extension, Ericsson's) favor just doesn't withstand even superficial scrutiny.

Three charts that I've quickly produced with OpenOffice Calc, relying on data points published on the Internet, show that the European Union would ultimately help Asian and American patent holders extract license fees from European product makers more so than it would strengthen Nokia and similarly-situated Ericsson:

  1. According to the latest IPlytics figures, Nokia (including Alcatel-Lucent) owns 8.63% of all 5G declared-essential patent families, and Ericsson 5.32%. That's a total of 13.95% for the only two European companies on the list--all others are American and Asian patent holders:

    Therefore, no matter how much (over)compensation those two licensors--Nokia and Ericsson--may be able to obtain, the EU economy will remain a net licensee in the greater scheme of things.

  2. Europe's automotive industry dwarfs Nokia and Ericsson with respect to investment in research and development. According to ACEA (European Automobile Manufacturers Association), "EU automotive investment in R&D has increased by 6.7% to reach €57.4 billion annually." Macrotrends says "Ericsson research and development expenses for the twelve months ending December 31, 2019 were $4.107B, a 8.3% decline year-over-year." Statista shows that Nokia's R&D spend is also in decline, down to €4.41 billion. Here's a column chart (click on the image to enlarge):

  3. Finally, it's also interesting to compare the number of jobs in the EU's automotive industry (ACEA: "13.8 million Europeans work in the auto industry (directly and indirectly), accounting for 6.1% of all EU jobs") to the entire population sizes of the two countries whose "national champions" hold 5G patents (click on the image to enlarge):

The underlying patent licensing issue affects more than the automotive sector. There's an emerging Internet of Things industry, and countless European IoT startups are simply not equipped to deal with end-product-level SEP licensing but could make highly innovative products if the wireless chips they incorporate into their products were exhaustively licensed.

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Thursday, October 10, 2019

After voting down EC candidate Goulard, the European Parliament should oppose giving France control over both DG GROW and DG CONNECT

The Financial Times' EU reporter Mehreen Khan just reported that the European Parliament has overwhelmingly decided to reject Sylvie Goulard, French president Emmanuel Macron's candidate for what would arguably have been the most powerful position in the new European Commission (this post continues below the tweet):

As Mehreen Khan noted, only 12 MEPs outside her own European-level political group voted for her. Practically all European People's Party and Socialists & Democrats MEPs voted against Mrs. Goulard, a scandal-ridden candidate who failed to provide a convincing answer in her confirmation hearing to the simple question of why one should confirm her as an EU commissioner in light of the fact she had to resign as French minister of defense. She promised to step down should she be ultimately convicted of any wrongdoing, but that was unsatisfactory because it wouldn't have occurred before the end of her term.

Virtually all European media reports in the build-up to the parliamentary decision suggested that resistance to her nomination was fueled by institutional outrage: at least the two largest groups in the European Parliament believe in the spitzenkandidat approach, a word borrowed from German that means "top-list candidate" and stands for the notion that only a candidate for the EP should be named president of the European Commission, the bloc's executive branch of government. But the new Commission president, Ursula von der Leyen, didn't run in this year's EU elections. She was Germany's minister of defense, and came into play when neither the EPP's Manfred Weber or the S&D's Frans Timmermans (whom I've repeatedly called "Poor Man's Bernie") managed to secure a majority.

What only one of the articles I saw mentioned is, however, the issue I'd like to focus on because innovation matters more than retribution: apparently some MEPs were concerned not only about the integrity of that particular candidate but also (or even primarily) about the allocation of fields of policy-making among the different commissioners.

No matter who will be named instead of Mrs. Goulard, what the EP should never accept--for the sake of Europe's fitness for an increasingly digital future--is that one commissioner--and especially not a French commissioner--effectively controls both DG GROW (the Directorate-General for the Internal Market, previously called DG MARKT) and DG CONNECT (Directorate-General for Communications Networks, Content and Technology, previously called DG INFSOC = Information Society).

Formally, the DGs are part of the Commission's "services" and "independent" from the commissioners and their aides ("cabinets"). But that's nominal. In reality, the political appointees make all the decisions.

The IP policy unit is part of DG GROW, and they consistently promote ever broader patents and ever more leverage in litigation for patent holders. By contrast, DG CONNECT has a tradition of, and hard-earned reputation for, being sympathetic to the digital sector. DG CONNECT takes a more balanced approach. They understand the implications of IP enforcement in connection with highly complex and multifunctional products. They realize to a greater extent than some other people that certain startups seek to be protected by patents, while many others need to be protected from patents. And they tend to look at free and open-source software as an opportunity, not merely a threat to other business models.

DG GROW already has the upper hand in IP policy-making. But with DG CONNECT ceasing to be an independent voice within the Commission (which would be the inevitable effect of the same commissioner being in charge), there's a risk of the EU Commission's IP policies completely drifting off balance.

Even the Wall Street Journal's article entitled "Incredible Shrinking Europe," which describes the EU as an economic-policy failure, acknowledges that the Single Market is the one aspect of EU economic policy that is working out--not in the sense of growth or wealth, but sheer size (more than 500 million consumers).

France got the most out of all the backroom horse-trading between the governments of the EU member states:

  • The new Commission president, Ursula von der Leyen, grew up in French-speaking Brussels, was nominated by France (as opposed to her country), and is more likely to pursue an agenda to Macron's liking than to advance Germany's interests.

  • A Frenchwoman, Christine Lagarde, will be president of the European Central Bank and continue its policy of financing southern European governments in contravention of EU law.

  • And France secured not only one of the two most important areas of responsibility within the Commission--the Internal Market (only Competition is similarly important)--but convinced the rest of the EU to allow the Internal Market division to absord and neutralize DG CONNECT.

Not only does France have its own national patent troll (France Brevets), which creates a huge conflict of interest for a French commissioner, but the Macron Administration is on a crusade against global digital powerhouses they generally refer to as "GAFA" (Google, Apple, Facebook, Amazon). Their top-listed candidate in this year's EU elections even likened those companies to large countries such as China.

A French EU commissioner nominated by Macron is, in practical terms, going to be an anti-GAFA commissioner. Giving an anti-GAFA commissioner control over both DG GROW and DG CONNECT is a bad idea. It's ultimately even bad for Europe because the French agenda does not benefit European consumers (who want access to innovative digital products and services) and countries with a stronger innovation culture than France, such as the Nordic countries or even Germany.

France has a rich history, but it doesn't have much of a future. None of its largest corporations (such as LVMH, L'Oréal, and Sanofi-Aventis) is a digital-economy player. Macron likes to think of France as a "Startup Nation," but has no facts to back up that vision. And it's hard to see how this is ever going to improve, given that many of the brightest young French engineers and programmers go to work for GAFA and other non-French companies and, which is so shocking, considering that only 2% of French students reach the top performance level in the TIMSS international math test, roughly at a level with Persian Gulf states. By comparison, 50% of Singapore's students are top performers in math, 40% of South Korean students, 20% of Russian students, and 14% of American students. Even Kazakhstan is at a level with the U.S., i.e., seven times as strong as France.

The French digital policy agenda is to dumb down all of Europe only because France has degenerated. This year's EU copyright reform is an example, as is the French pet project of a "digital tax" (the U.S. threatened with retaliation, but a deal was reached in August). The situation will get a whole lot worse with a Macron appointee controlling both the EU's internal-market and digital-policy divisions--an unprecedented concentration of power that would be undesirable even if the commissioner came from a more innovative country with brighter students.

Hopefully the European Parliament will defend DG CONNECT's independence. Today's vote against Mrs. Goulard opens the door to interinstitutional negotiations. The French government is already afraid of this, and I agree with former Swedish MEP Amelia Andersdotter that commissioner portfolios aren't allocated to countries:

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Thursday, July 11, 2019

United States Trade Representative launches investigation into France's digital tax for good reasons--and should look into copyright law, too

Yesterday the United States Trade Representative (USTR), Robert Lighthizer, announced, officially at the behest of President Donald Trump, the initiation of a Section 301 investigation (i.e., an analysis of whether a foreign government violates a trade agreement or acts unreasonably or discriminatorily against U.S. commercial interests) of France's digital services tax. The next formal step will be a Federal Register notice. This is what Mr. Lighthizer said:

"The United States is very concerned that the digital services tax which is expected to pass the French Senate tomorrow unfairly targets American companies. [...] The President has directed that we investigate the effects of this legislation and determine whether it is discriminatory or unreasonable and burdens or restricts United States commerce."

The President and the USTR are rightly concerned. France, with its almost plan-based highly-centralized economy and statist approach (= the opposite of Reagan's take that one has to get government out of the way) is an abysmal digital-industry failure, and TIMSS, the leading international math skills analysis, shows that French students are pretty much at a level with Third World countries, which means things are only going to get worse in the "Hexagon." Geographically, France is part of Europe; in educational terms, it's the worst country in the entire EU. By comparison, Singapore takes 25 times as many students (relative to the total number of students) to the top-performing level; Russia, ten times as many; and even the U.S., with its oft-criticized educational systems, seven times the number of France (again, this is a relative measure, so large countries don't have any advantage). While Germany performs 2.5 times as well as France (still far behind not only East Asia but also the U.S. and even a country like Kazakhstan), its politicans are incompetent and/or ideological enough to believe that France is their best partner in innovation policy, instead of trying to stay away from the failed French approach as much as possible.

There are two French computer game makers I think highly of: Ubisoft and (in the segment of "snackable" minigames) Voodoo.io. Other than that, I can't even think of a French technology product that would matter.

The French digital-tax initiative is ill-conceived because they don't want to tackle the real issue. The real issue is simply that the EU as a whole is a fundamentally-flawed supranational structure that does more harm than good. I sometimes recommend a great Wall Street Journal article (which doesn't even mention all of the problems), "Incredible Shrinking Europe."

Just like it was stupid and irresponsible in the first place to put a common currency in place without a common economic policy (as a result, the European Central Bank hasn't increased its interest rates even once in more than a decade, while the U.S. had half a dozen hikes during the same period), it was also incompetent and irresponsible to create a "Single Market" without some minimum tax standard or, in the alternative, an easy way to exclude members taking unfair advantage of this by positioning themselves as a low-tax access point to a market of 500 million consumers. As a conservative I'm all for tax competition, but fair tax competition and not just leeching.

The EU and the large member states of the eurozone are so poorly run that they didn't even seize the historic opportunity they had when Ireland needed a bailout. They could have conditioned the bailout on Ireland agreeing to some minimum tax standard. Obviously, leeches like Luxembourg (Juncker's country) wouldn't have liked this anyway, but Ireland is the #1 problem in this regard.

The Apple "state aid" case is the only crazy thing Mrs. Vestager did during her first term (other than that, I disagree only gradually, not fundamentally, such as with respect to some aspects of the Android case; I'm now looking forward to her second antitrust hammer--the final one for this term--coming down on Qualcomm soon; and on Twitter I repeatedly voiced the view that she was the best potential candidate for the presidency of the European Commission). That Apple-Ireland case has nothing to do with "state aid" and everything to do with "buyer's remorse" in the sense of the EU now seeing the problems that a Single Market without a common fiscal policy (at least a minimum tax standard) creates. Apple is not responsible for the EU's structural issues.

What France is doing with its digital tax is really odd. It's not a sales tax because there is no physical sale occurring in France when Facebook, for instance, displays an advertisement. Nor is it a tax on profits. Instead, France argues that because major digital platform companies are very profitable, foreign entities owe France a percentage of revenues attributable to the French market.

France wanted to make this happen at the EU level, but never got real traction as Germany was reluctant to support this with a view to potential backlash affecting its automotive industry. So France decided to implement something at the national level, and I'm glad the U.S., under its best president in decades, will seriously consider some retaliation in order to dissuade France from this idiocy. Maybe the U.S. International Trade Commission, with its investigative resources, will also be of help in the process. The top-listed candidate of Macron's party in this year's EU Parliament elections made it very clear that they view Google, Amazon, Facebook and Apple as enemies of the state, or collectively as the equivalent of a rival world power, all of which is downright insane.

While I'm not going to do any more copyright reform-related posts on this blog (maybe a new blog further down the road), I would like to just say that Articles 15 and 17 (previously Articles 11 and 13) of the EU Copyright Directive adopted this year are also the equivalent of a digital tax discriminating against U.S. Internet platform makers. France was the driving force behind Article 17 (upload filters), while Germany was more interested in Article 15 (link tax). In fact, France politically blackmailed Germany by threatening to block the Nord Stream 2 pipeline deal with Russia at the EU level if Germany hadn't supported Article 17 of the copyright bill. That is not a conspiracy theory. It was confirmed by reliable sources and reported by Frankfurter Allgemeine Zeitung, and it was obviously no coincidence that both the gas pipeline issue and copyright reform were the only two "A items" on the EU Council's April 15, 2019 agenda (so as to make it clear to Germany, which was having second thoughts, that derailing copyright reform would trigger some energy-related blowback).

The "upload filter" paragraph of the copyright bill is practically a digital tax because it creates a liability regime that is so strict that even the term "strict liability" the way it is reasonably understood in the U.S. would be an understatement. It gives enormous leverage to copyright holders (many of whom are European collecting societies and publishers) against major Internet platform companies in licensing negotiations. There are, as we all know, many very significant U.S. copyright holders (Hollywood, music industry etc.), and they'll benefit from this, too, but the European share of copyrighted works consumed in Europe is hugely greater than the European share of digital platforms used by Europeans. Therefore, this is another means of unreasonably and discriminatorily sucking money out of major U.S. Internet platform companies. It's like the digital tax, but indirect: collecting societies and publishers will initially receive the money, but obviously this will result in incremental tax payments in Europe, including France.

EU member states have some limited flexibility--a modicum of wiggle room--regarding the transposition of Article 17 into their national laws. France is already pressing ahead with the most draconian and unbalanced implementation imaginable, and other European countries may follow, though there's clearly less enthusiasm for this elsewhere.

I will follow the Sec. 301 investigation of the digital tax issue, and I strongly recommend to major Internet platform companies and the industry bodies representing them to raise the EU Copyright Directive, or at least its transposition into French law, in this context. It really is an indirect digital tax. Doing so now might dissuade other EU member states from adopting France's copyright extremism. While that is not what President Trump was elected for, it would happen to have significant benefits for European Internet users, too.

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Tuesday, November 20, 2018

Call to action: Munich should remain a leading patent litigation venue in Europe

Roughly two thirds of all European patent infringement cases are brought in Germany. Unlike in the U.S., where patent cases can be filed with any district court in the country, only a limited number of German courts have in rem jurisdiction over such cases, and only three of them really matter: Düsseldorf (this venue gets most cases, but not in the smartphone industry), Mannheim (the primary smartphone venue, where some judges almost deserve an honorary doctorate in radio frequency electronics), and Munich, where I grew up though I'm westbound by now.

Munich has two regional courts. Munich I has in personam jurisdiction over cases involving actions or persons within the city border, and in rem jurisdiction over patent cases; Munich II serves the outskirts (and doesn't try patent cases).

Munich I earned its place among the top three German patent venues--and, I would say, among the top five in Europe--for a combination of reasons:

  • It used to be a rocket docket, about as speedy as Mannheim and clearly faster than Düsseldorf.

  • It has its own--I'll use a U.S. term--patent local rules. Unlike Mannheim and Düsseldorf, where everything substantive is discussed in a single trial, Munich has broken the trial up into two parts, an "early first hearing" ("frühe erste Anhörung") and a "main hearing" ("Hauptverhandlung"). The first hearing usually takes place a few months after the complaint was served, and is somewhat similar to a U.S. Markman hearing, though they usually don't write down a claim construction the way U.S. courts do and, beyond the Markman scope, start to discuss infringement questions. The early first hearing gives parties a chance to fine-tune their argument with a view to the second hearing, which is the actual trial.

  • Many patent-focused firms have a strong presence in Munich (for an example, Quinn Emanuel's German center of gravity appears to be shifting from Mannheim to Munich) because of the strength of the regional economy (including many subsidiaries of major U.S. tech companies) and all those proceedings taking place before the European Patent Office (oppositions to recently-granted patents) and the Federal Patent Court of Germany ("Bundespatentgericht"; nullity proceedings against German patents or, typically, German parts of European patents).

  • While this is only a minor factor, Munich is also far more of a tourist attraction than Düsseldorf, let alone Mannheim, which is almost creepy and has an increasing problem with violent crime.

But there's a serious problem--a lack of political support for this patent venue.

While the government of the state of North Rhine-Westphalia, regardless of whether the state is run by conservatives in name only (as it is now) or by the self-declared political left (as it was before), recognizes patent infringement litigation as a regional economic development factor, the party that has been in government in the state of Bavaria for half a century (CSU) appears to be pretty clueless, which is irreconcilable with its "Laptop und Lederhose" (laptop and Oktoberfest-style leather pants) slogan. Instead of strengthening the "civil law chambers" ("Zivilkammern") that hear patent cases in Munich, the court's former chief judge even reduced staff size by one judge, which sounds like a minor difference but has huge practical implications whenever one of the three judges (and they need three to form a panel that can hear and adjudicate a case) is on vacation or ill.

That's why I'm asking those of you who have a professional interest in Munich remaining a major patent litigation venue, also with a view to the future Unified Patent Court (UPC), to help those provincial folks figure out the problem and, more positively speaking, the potential.

A new Bavarian state government has just been formed, and a new state AG (again I used a U.S. term; in German, he's called "Justizminister", or "minister of justice"), who is ultimately in charge of providing the Munich I court (unlike a U.S. district court, a German regional court is a state--not federal--court) with sufficient resources, has just been appointed. Georg Eisenreich was previously in charge of (among other areas of responsibility) "digitization," a fact that may make him much more receptive to patent-related issues than the average state-level politician.

You can find his ministry's contact data on this web page. If you care about Munich as a patent litigation venue, please write to him and explain that you've learned about a recent staff cut affecting the "7. Zivilkammer" of the Landgericht München I, and that you would like to express your concerns about how this decision, beyond its practical implications, sends out a signal that threatens to reduce the relevance of Munich as a patent litigation venue. You may wish to highlight the following points:

  • It's important for Bavaria as a state that prides itself on its strong technology sector to have a strong patent infringement court.

  • Patent infringement cases tend to generate very high court fees for the state, so strengthening--not weakening--the venue will pay for itself, and more.

  • The state government should strive to ensure that Munich remains a significant venue if and whenever the Unified Patent Court starts.

  • Many patent litigants travel to German patent litigation venues from other countries (very often even from other continents). The government of the state of North Rhine-Westphalia appears to be aware of the economic benefits of such business travel, and so should its Bavarian counterpart.

  • Patent prosecution and litigation firms have created, and will continue to create, many high-paid jobs in the Munich area, some of which depend on the ability to enforce patents in their backyard. Also, many inventors may seek patent attorneys in cities they read about in the context of high-profile patent litigation involving U.S. and Asian technology giants.

  • If the state government fails to act, other specialized judges, whom it is hard to replace, may follow the example of former presiding judge Dr. Peter Guntz, who was hired away by the European Patent Office, where his after-tax income is presumably a lot higher.

None of this is meant to criticize the work performed by the court's patent judges. It's all about what the state government should do in order to let those specialized judges do their work as efficiently as their peers in other major German patent litigation venues.

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Sunday, October 29, 2017

The EU's definitive defeat: digital tax plans and a declaration of surrender to Silicon Valley

What you're reading here is a highly skeptical take on the EU's innovation policy and economic outlook from an EU citizen who will leave the EU as soon as possible (more on my personal conclusions at the end of this post).

The EU has a huge competitiveness issue already, and due to the eurozone's lack of innovation, especially in its Mediterranean member states, the sovereign-debt crisis is never going to be resolved. The European Central Bank is, in some ways unlawfully, keeping Europe's south afloat and will do so for some more time, but at some point there will be a crisis of unprecedented proportions--either an acute and dramatic crisis or an extended depression from which the eurozone as an economic area won't really recover.

In the 21st century, innovation is the only way that industrialized countries can achieve more than 1% or 2% of year-on-year organic growth--obviously short of an unexpected discovery of natural resources, which is not realistically going to happen in the EU, or wage cuts in underperforming countries that are even less realistic than the existence of huge undiscovered gold mines in France, Spain, and Italy. The Finnish economy, for example, was performing extremely well while Nokia was setting new records all the time, but shrank by about 9% in a single year as a result of the iPhone/Android revolution. And it's shrinking again. Countries like Spain and Italy--and even France--never had a Nokia in the first place. The Mediterranean economies are strong in industries that mostly existed already in ancient Roman times (agriculture, construction, with even textile going to Asia). Tourism is, relatively speaking, the most modern industry that is strong in those countries, and the EU predicts about 5 million more tourists per year, which I don't doubt but it's not going to do much about youth unemployment rates of 46% in Greece, 38% in Spain, 36% in Italy, and more than 20% in France.

The EU wanted to become "the most competitive and dynamic knowledge-based economy in the world capable of sustainable economic growth" by 2010, and failed, as even the then-prime minister of Sweden conceded in 2009. For example, per-capita GDP in the EU was less than $38K last year vs. $57K in the U.S.

By now the EU appears to have given up on its ambitions for the digital economy. Instead, its focus is on a new tax that could lead to a full-blown trade war with the U.S. and would definitely harm European companies and consumers in the end.

I'll write about the tax plan again soon because I'll try to make a contribution to the mobilization of app developers and other European technology companies against that plan. In this post, I'll connect a few dots to show the broader picture.

In a Q&A document on the EU's digital tax plans, the EU recognizes the increasingly important role of digital business to the economy:

"In 2006, only one digital company was among the top 20 firms by market capitalisation, accounting for only 7% of the market capitalisation. In 2017, 9 out of the top 20 companies were technology companies accounting for 54% of the total top 20 market capitalisation. Between 2008 and 2016, the revenues of the top 5 e-commerce retailers grew by 32% on average per year. During the same time period, revenue in the entire EU retail sector grew on average by 1% per year."

The largest companies in the digital economy are U.S. and Chinese companies, plus South Korea's Samsung. As a Wikipedia page shows, no EU company has been among the world's largest 10 companies (from all industries, but with digital businesses now leading) by market capitalization since Royal Dutch Shell in the second quarter of 2014. That's a huge failEUre, and a strategic issue because it means that to the extent Europe has any innovative businesses at all (such as SAP), they're not at the top of the M&A food chain.

While that tax plan Q&A still claims the EU wants its digital startups to succeed, the EU's digital industry commissioner has just given an interview to Frankfurter Allgemeine Zeitung, in which she says Europe doesn't need a company like Google. How little weight the digital economy has in the EU is reflected by the commissioners assigned to that area of responsibility. Presently, the EU's digital commissioner is Mariya Gabriel, a young Bulgarian politician with an even less impressive track record than her technology-illiterate predecessor, Germany's Guenther Oettinger, who became the laughing stock of many people in the EU tech industry. Mrs. Gabriel said in the aforementioned interview that the EU should focus on fields such as nanorobotics, security chips, and "automotive digitization", where she says EU companies are leading the way. I checked on who the current leaders in nanorobotics are and found more U.S. than EU companies among the top 10, with all of those EU companies being small enough to be acquired sooner or later, and I've previously outlined my thinking on the automotive future.

There are structural reasons for which the EU not only lacks major players like Apple and Google but why it's highly unlikely that any of its startups will, as an independent company, ever reach that level:

  • The U.S. market is the most important single market, followed by China. That's why I decided to focus on the U.S. first (we'll create content for other markets later), just like this blog has more readers in the U.S. than anywhere else, but EU companies usually serve their domestic market first. No matter how often the EU talks about the "Digital Single Market" (DSM), which is also the context of those terrible digital tax plans, it simply won't be a single market like the U.S. market anytime soon. Multilingualism is a major challenge for the EU, but most countries are too proud and too lazy to think for even one second of adopting English as an EU-wide official language. Therefore, startups can't address the EU market as a single market. It's about a lot more than just translating one's product. For example, there's no major tech news website or IT magazine that people read across the EU.

  • That EU tax document refers to something that is a huge factor indeed: network effects. It's not just that large U.S. companies benefit from network effects. In a way, the U.S. tech industry as a whole has the equivalent of network effects because it attracts and funds many of the world's most talented technologists. There's a virtuous circle involving business angels (many of whom made a fortune through stock and stock options in previous-generation tech startups) and institutional investors of the kind the EU won't have.

  • Investor mentality also plays a role. In the EU, investors generally prefer niche businesses, while in the U.S., there is more of a willingness to "think big" and place bets on what EU investors would consider unrealistic long shots.

  • Partly as a result of unselective migration, in many cases combined with dumbing-down educational policies, the eurozone's population is, on average, becoming weaker and weaker in math according to the Trends in International Mathematics and Science Study (TIMSS). Non-eurozone industrialized countries take fairly high percentages of their 12-year-old students to the top performance level (Singapore: 50%; South Korea: 40%; Northern Ireland: 27%; Russia: 20%; United States and Kazakhstan: 14%), while the largest eurozone countries perform worse each time the study is repeated. Germany, for instance, dropped by 10 ranks between 2007 and 2012 and is now at 5%, which makes it the one-eyed among the blind among major eurozone economies (Italy 4%, Spain 3%, France 2%). The French number is an unbelievable disaster. If you looked at an average class of 30 students in Northern Ireland, eight of them would reach the top level, while in France you'd need two classes of that size to find just one such student. But to address the root causes of that problem would require French politicians to say and do highly unpopular, politically-incorrect things. That's why no one's talking about the big elephant in the room.

Contrary to what the EU says, its tax plans won't make any EU company more competitive. Also, it doesn't make sense that U.S. and other digital businesses "can take full advantage of the networks, infrastructure and rule of law institutions available in EU Member States, without paying any tax in that country." Seriously, how many lawsuits have Apple's App Store or Google's Play Store given rise to in the entire EU? Few and far between I would guess. Do they use such infrastructure as roads and bridges? Not really. It just comes down to cheap electrical and optical signals going over the networks, and the network traffic caused by the download of an app is typically less than a couple of minutes of even a low-quality video stream.

Unfortunately, the Commission's tax initiative has drawn support even from normally libertarian, free-market and fiscally conservative parties such as Germany's FDP, whose secretary-general said last week that she wants to impose higher taxes on the likes of "Apple, Google, and Facebook."

There is some resistance from such countries as Ireland, and unanimity would be required for an EU-wide rule, but something bad could come out of this. Ideally, the EU would like to address the issue at an even higher international level (OECD). If not, the Commission will make a proposal for the EU to act unilaterally. And then, if some countries tried to block the plan, the largest EU member states such as Germany and France might just go ahead without the rest of the EU--and once that threat becomes real, an EU-level agreement might materialize.

Whatever may or may not happen in the end, it's already clear that the EU's dubious "state-aid case" against Apple was just an attempt by the Commission's competition enforcement arm to position itself as the vanguard of the EU's tax crusade against the digital economy's winners. This is just the behavior of sore losers.

I wouldn't have been against a small EU consisting of quality countries in economic and educational terms, with everyone giving up national sovereignty for a greater good. But an unselective and expansive EU that consistently puts the cart before the horse (common currency for disparate economies without a common economic and fiscal policy; internally open borders without effective external controls) was a bad idea.

A few days ago, the European Central Bank announced that, after spending (literally) trillions of euros buying government debt mostly from the likes of Italy and Spain, it was now going to reduce the extent of that program to 30 billion euros a month. By comparison, that is about 10% more than Germany's federal budget. Also, the ECB already owes Germany approximately 800 billion euros through its Target 2 system (with Italy and Spain being the primary net lenders, and even Greece being a significant net recipient). The only way that those countries could ever repay their debts would be sustainable, organic, rapid economic growth. The ECB says that the need for growth is why its "quantitative easing" must continue, and mainstream media in Europe largely parrot that pretext (and even those who criticize the ECB don't tell the whole truth about the mess). But quantitative easing and zero interest rates don't change the fundamental problems I mentioned above. It certainly won't hone anybody's math skills or prevent European tech companies from being bought by U.S. and Chinese acquirers. Instead of spurring growth, the ECB simply enables southern European governments to avoid hard and unpopular decisions. As their excessive borrowing continues, the mess gets bigger until the system implodes.

Just like the ECB's quantitative easing doesn't benefit innovative businesses, the kind of digital tax the EU has in mind would just benefit governments in the short term.

Finally, the kind of disclosure I promised further above. I must admit that I was totally against the 1992 Maastricht Treaty (the treaty that converted the European Community into the European Union and laid the foundation for the euro currency) and now, 25 years later, everything that could have gone wrong with the euro currency and free movement (and that experts had warned against before those fatal decisions were taken) has indeed gone wrong. In 2004-2007 I opposed various EU policy initiatives and consistently got along very well with the "Brexiteers" in the European Parliament. I do sometimes support EU competition cases if they involve genuine antitrust and merger control issues, but not if they're "total political crap".

I don't want to be a resident of the dysfunctional EU anymore. I'm on my way out of the EU as we speak. After years of development, I'm finally about to launch my app, which has already been approved by Apple for App Store distribution, in the U.S. market. I haven't announced the name of the product and of my company on this blog or on Twitter yet, but I will soon. All that I have said so far is that it's going to revolutionize the trivia game market. And it will.

Once my app generates a certain level of revenues, which I'm sure it will soon (just don't know exactly how much and how soon), I'll be in a position to relocate to the U.S. on a permanent basis. That step is actually overdue. As a matter of fact, this blog has widely been perceived as a U.S. tech/IP law/policy blog (even by the Library of Congress). I've always considered, despite its challenges, the United States the greatest country on Earth, and I've traveled a lot more in the U.S. than in Europe already. Now it's not just about personal preferences or the greater opportunities I see in the U.S.--I'm really deeply convinced that the eurozone is on the completely wrong track without any hope that things could somehow work out in the end. The overindebted economies of the Mediterranean region won't recover, and Germany isn't strong enough to support them forever. For example, Italy technically owes Germany (through the ECB) many hundreds of billions of euros, but Germany's trade surplus over Italy is just on the order of 10 billion euros a year. The numbers just don't make sense. Once Germany's pension system becomes unsustainable due to the demographic gap (by the 2030s at the latest), it will be game over for the eurozone, if not before.

Should the EU levy a special tax on digital businesses, its innovation problem would only exacerbate. It's worse than merely rearranging deck chairs on the Titanic.

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