Dutch judicial entrepreneurship towards legitimizing intellectual property rights

Krishnamani Jayaraman

doi:10.1177/1023263x20954627

Abstract

In its recent judgment in the Sisvel v. Xiaomi case, the Court of Appeal of the Hague has demonstrated how European national legal systems and judiciary therein strive to uphold legitimacy of the intellectual property system. Involving dimensions of both substantive patent law and competition law, the case emphasized proportionality etched in European Union law to determine the legitimate cohesive balance for stakeholder economic interests in the protection, enforcement and use of intellectual property rights. This case note documents the salient features of the judgment and further comments on striking legal concepts that marked the case.

Highlights

The legal fraternity’s efforts to constitutionalize intellectual property law have increased in the last two decades.[1]
The Court of Appeal of the Hague has demonstrated how European national legal systems and judiciary therein strive to uphold legitimacy of the intellectual property system. Involving dimensions of both substantive patent law and competition law, the case emphasized proportionality etched in European Union law to determine the legitimate cohesive balance for stakeholder economic interests in the protection, enforcement and use of intellectual property rights
Xiaomi case presented one such illustrative legal microcosm that tethered the intellectual property paradox, NIE and judicial entrepreneurship to foster competitive market entrepreneurship and consumer welfare in the Dutch mobile communications sector

Summary

Introduction

The legal fraternity’s efforts to constitutionalize intellectual property law have increased in the last two decades.[1]. Xiaomi case turned out to be one such judicial balancing exercise, where the Court of Appeals of the Hague (the Court ) legitimized understandings of intellectual property rights, their protection, use and enforcement.[12] The judiciary temporarily set aside exclusivity considerations associated with intellectual property to give way to a more detailed contextual analysis of stakeholder economic interests for those rights. It clarified, within the nature and context of the case, why a preliminary injunction was not the appropriate enforcement means for allegedly infringed standard essential patents (SEPs) that covered mobile communication technologies in the Netherlands. The judiciary’s balance of interests approach stood testimony to a Court’s important role in policing the legislative boundaries of the intellectual property rights framework that are prima facie politically derived,[16] and in convincing the general public of the beneficial relevance of intellectual property rights as political institutions capable of conferring socio-economic stabilities and performances over time.[17]

Relevant facts of the case

The Court’s reasoning and decision

The import of injunction for Sisvel and Xiaomi

Complexities surrounding injunction

Proportionality and the ‘balance of interests’ approach

Conceptual foundations