Tech firms evolving too quickly for IP courts

IT firms are going to greater lengths than other businesses to protect their intellectual property – because their products are borderless and because national courts cannot keep up.

Such is the verdict of law firm RPC, which has found that the total number of IP cases heard by the EU’s highest court leapt to 69 in 2014, compared with just 43 in the previous year.

Jeremy Drew, head of the firm’s IP and technology group said: “E-commerce businesses and apps are evolving at such a pace that UK and other national laws just cannot keep up.

“If national courts can’t definitively answer whether a new online business is illegally using someone else’s IP, then the cases have to be referred up to the European Court of Justice.”

The irony, he says, is that the ECJ can take so long to decide a case that once a final judgment is reached, the commercial landscape can have “changed completely”. Hefty costs arise too.

In such prolonged, uncertain and costly legal situations, the eventual ruling by the ECJ “can either be redundant” warns Drew, or it can come “too late to change the facts on the ground.”

He blamed the infrastructure at the ECJ for not being up to scratch - it “just can’t cope,” but RPC also acknowledged that the cases the ECJ is asked to rule on are getting more complex.

“An increasing number of businesses are looking to protect their IP across borders,” explained RPC’s legal director Ben Mark.

“Due to the rise of e-commerce, businesses are becoming increasingly protective over their ‘brand’, even in markets where they don’t currently have a substantial presence.”

He advised that if the EU wants to help create a better playing field for digital businesses, as it says it does, then it should give the ECJ “proper resources” to help it get on top of the delays.

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