[A2k] Startup companies and the IP playing field
ante at ffii.org
Wed Mar 30 02:58:22 PDT 2011
Startup companies and the IP playing field
March 30, 2011
FFII response to the Consultation on the Commission Report on the enforcement
of intellectual property rights
(Also available as pdf)
We would like to thank the European Commission for this opportunity to provide
feedback on the Report.
To stimulate startup companies, the EU legal situation should minimize market
entrance risks for innovators. Startup companies are often confronted with
patent minefields. Even a mere allegation of infringement may easily lead to
market exclusion. Startup companies often do not have enough resources to
litigate. Established players in late stages of their own market life cycle
may abuse the patent system to stifle entrants and emerging competitors, patent
trolls drain market entrants in a phase where they want to grow.
Care has to be taken that provisional injunctions do not lower the burden of
proof. Damages beyond the actual prejudice should be avoided as they have a
disproportional negative effect on startup companies, which do not have deep
The Commission should offer safeguards to prevent enforcement abuse, strengthen
legal definitions and clarify the law. EU legislation needs measures to ensure
a fair balance between startups and established companies. EU legislation
needs dissuasive measures against abuse by patent trolls.
Risk reduction for startups is key to improve investment conditions. The
actual needs of innovators should be in the center.
The European system of fixed copyright flexibilities is not flexible enough in a
rapidly changing world. The EU should introduce a fair use system. Many
existing flexibilities should be made mandatory. A reverse Berne’s Three-Step
Test could provide a solution for many problems in the copyright field.
The Anti-Counterfeiting Trade Agreement may cause a fait accompli. In order to
prevent a fait accompli, the FFII supports withholding consent on ACTA.
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