The ACTA treaty is currently being negotiated behind closed doors between US, the European Union, Japan, Switzerland, Australia, New Zealand, South Korea, Canada, and Mexico. According to leaked information, the treaty would apply the same harsh sanctions for all IP infringements, whether they are patents or plant variety rights. ACTA might be a fuel for trolls, since it could lower down the threshold level for obtaining injunctions and freezing bank accounts of the suspected infringer. This is exactly what happened in the Italy recently just after the implementation in italian law of the IPRED1 directive with the Philips Vs Princo case. In this case the bank accounts of the Italian trader were frozen in advance, even before a court decision was reached:
‘Piracy’ provisions under the Enforcement Directive and patent infringement
Laura Orlando (Trevisan & Cuonzo Avvocati)Princo Corporation, Ltd v Koninklijke Philips Electronics, Docket no. 3213/07, Court of Genoa, 18 April 2007
The Court of Genoa has issued its first decision on the application to patent infringement of the remedies introduced by Directive 2004/48 on the Enforcement of Intellectual Property Rights, dismissing the appeal filed by Princo against a precautionary seizure order over its movable and immovable property issued by a judge of the Genoa IP Chamber on the grounds that the patent infringement was committed intentionally and on a commercial scale.
During a hearing in the European Parliament on the revision of the directive, a french expert confessed that the directive was problematic in France and lowered down the threshold to obtain an injunction from "quasi-certainty of infringement" to "suspicion of infringement". He said that current judges tends to keep the old way of issuing injunctions only when they have quasi-certainty, but this could change with new judges.
The source of the problem is coming from the concept of "all IP rights (ie patents, copyright, trade marks, plant variety rights, geographical indications, etc…) are the same" and "all infringements of those rights should be treated with same harsh sanctions".
The same logic of "all sanctions the same for all IP rights" has given birth to a piece of EU legislation, the IPRED1 directive. This directive has been led in the European Parliament by the wife of the CEO of Vivendi Universal, Mrs Janelly Fourtou. The directive does not use precise terminology, and uses the very broad term of any "intellectual property" right. Because this term was not defined in the Directive, the European Commission had to clarify the term "intellectual property" by equalling it all intellectual property rights, ie:
- here
- copyrights and related rights
- copyrights
- patents
The IPRED1 directive was recently criticized by a french patent expert during a hearing on the revision of the directive in the European Parliament as a mean for patent owners to obtain injuctions more easier then before, because this directive lowers the threshold of obtaining patent injuctions from "quasi certainty of infringement" to "suspicion of infrigement". He explained how the old french judges still uses the method of "quasi certainty of infringement" and why the french implementation of the directive (implemented in french law at the end of 2007) lowers down this level to "suspicion of infringement".
Here is the part of the directive which is problematic:
put the relevant part of the text here
Philips (who is the only company in the IT sector to support criminal sanctions for patent infringements - like they do via their proxy company Sisvel for hunting chinese manufacturers of mp3 players) has used recently the provisions of the IPRED1 directive in Italy against a producer of blank CDs, Princo.
