The ultimate weapon for a patent strategy is the injunction. Patents are negative rights which means that at the end of the day a patent holder can stop another company from selling, using, offering for sale or important an infringing product. As IP strategists, we’re usually trying to work hard on assisting companies to obtain a commercial advantage through establishing a strong patent and other intellectual property portfolio and using this portfolio in negotiations with partners, suppliers and competitors to strengthen a company’s competitive advatange. It’s rare that we’ll look at actually blocking a competitor from selling a product – mostly deals are done and a market for a particular product is actually strengthened by having several competitors respecting each other’s intellectual property. From time to time, however, there are times when it may be necessary to seek an injuntion to stop another company from trespassing into protected territory – and that is where the injunction comes into play. Unfortunately, the time taken to get an injunction can be extraordinarily long. Two or three years is not uncommon in many countries – and even in the quicker countries such as the UK or Germany an injunction is rarely granted within a year (and can then be appealed). Emergency injunctions may be possible – but these can be difficult to get except under special circumstances.
So it’s intriguing to read today’s story on the BBC website about LG stopping the import of Sony Playstation 3 consoles into the whole of the European Union (at least for the next ten days). A fascinating example of two large electronics companies exploiting the EU Border Seizure Directive to stop the import of an infringing product. The Directive is usually used to stop counterfeit clothing or software. It’s rare that patents are involved.
Even more fascinating – and useful when considering the single market of the European Union, is that the court in the Netherlands has decided to effectively stop all imports into the European Union, since Rottendam and Amsterdam are the main ports of entry. Of course, it is possible that Sony may try and find a new point of entry into the EU – but they risk other seizure orders in other countries.
The UK Guardian reports that up to 100,000 consoles a week are imported into Europe. At a retail price of between EUR 200 and 500 that’s going to be an impressive amount of lost sales and will not doubt be concentrating minds wonderfully on a dispute that has been going on for some time and is related to patents on the BluRay standard.