The next Mobile World Congress (MWC), a world-leading event in the mobile communications industry, will be held in Barcelona from February 26 to March 1 2018.
Foreseeing potential conflicts between the participating companies, the panel of judges of the Barcelona Commercial Courts has agreed, for the fourth consecutive year, to adopt a specific protocol of guard service and fast action which contains effective measures to protect technology patents, industrial designs, trademarks and copyright and defend against unfair competition and unlawful advertising acts in relation to products and materials which are displayed at the MWC.
The following protocol has been put in place until the end of the event:
- There will be priority and preferential processing of urgent interim injunctions (either ex parte or not) for the products and materials displayed at the event.
- Ex parte interim injunction petitions must be resolved within two days and interim injunctions must be resolved within 10 days in the event of a hearing, as long as a protective letter has been filed.
- The admission of a request for protective letters must be resolved on the day of their presentation. A protective letter is an anticipatory defence to avoid the adoption of ex parte interim injunctions. Its admission and immediate resolution is made so as to allow the eventual defendants to:
- put forward their arguments; and
- show their willingness to appear before the court immediately where a request for an ex parte interim injunction is filed.
According to the new Patents Act, which came into force in April 2017, once a protective letter is filed, the court will provide the patentee with a resolution informing it that the protective letter has been submitted. The patentee will then have a term to file the interim injunction petition, which will allow it to access the protective letter's content. If the patentee does not submit the interim injunction petition, the proceedings will be closed. The filing of a protective letter does not bind the court. Thus, if the patentee submits an interim injunction petition, the court can decide to grant it without a hearing.
The claimant's prior conduct (in particular, whether they filed the injunction the moment as soon as they knew of the infringement and whether it was filed in good faith) will be a determining factor in assessing the urgency of such ex parte interim injunction petitions.
The Barcelona Commercial Courts have highlighted the following results of the application of their protocol during the 2017 MWC:
- Twelve protective letters relating to patents were submitted, all of which were resolved before the event started.
- One verification of facts procedure referring to a patent matter was submitted against five companies. It was processed and resolved in 24 hours. The measure was upheld.
- Seven ex parte interim injunction petitions were submitted, all of which were processed and resolved in 24 hours. Four were upheld and three were dismissed.
- One opposition to an ex parte interim injunction was submitted, which was processed and resolved in 24 hours. The opposition was upheld by fixing a bail.
In view of the previous results, the Barcelona Commercial Courts highlighted the increase in requests for ex parte interim injunctions submitted with respect to 2017 and indicated their expectation that this, along with the number of protective letters submitted, would increase in the MWC 2018.
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For further information on this topic please contact Alejandro Angulo, Jesús Arribas or Ignacio Marqués at Grau & Angulo by telephone (+34 93 202 34 56) or email (email@example.com, firstname.lastname@example.org or email@example.com). The Grau & Angulo website can be accessed at www.ga-ip.com.