Cecilia Maronero (University of Insubria & University of Bordeaux)

NPEs, Patent Quality and Litigation Strategies across European Jurisdictions

At Campus Luigi Einaudi – room 3D439

Abstract. The emergence of Non-Practicing Entities (NPEs) has significantly swayed patent market dynamics. With the recent development of the patent system and the fast advancement of technologies, the number of patents has increased, thus generating an exceptional flourishing of patent acquisitions. Over the past few decades, this unprecedented patent market transition has given rise to the emergence of various new market players, of which NPEs are among the most prominent ones. Though NPEs first emerged in the US market for technologies, Europe has witnessed a rising presence of these actors. This research aims to study NPEs’ patent litigation activities in Europe linking together, in a novel way, the characteristics of NPEs’ asserted patents and the choice of the most favorable jurisdictions where to initiate patent infringement lawsuits (i.e. “forum shopping”). Our objective is to investigate the impact of heterogeneous European legal regimes (distinguishing, for instance, between injunction-based vs. fee-based jurisdictions) on NPEs’ patent litigation strategies. We present evidence based on a comprehensive dataset of infringement actions based on patents filed at the European Patent Office (EPO) and initiated in the five most NPEs’ targeted jurisdictions in Europe – namely Germany, the U.K. (England and Wales), France, Italy, and The Netherlands – during the period 2007–2020. Our preliminary findings suggest that NPEs strategically adapt their litigation strategies, thus choosing a different legal regime according to specific patent quality characteristics.