[A2k] Startup companies and the IP playing field

Ante ante at ffii.org
Wed Mar 30 02:58:22 PDT 2011

Startup companies and the IP playing field
March 30, 2011
By Ante


FFII response to the Consultation on the Commission Report on the enforcement 
of intellectual property rights

(Also available as pdf)

March 2011


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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