Trade fairs offer a prime platform for showcasing innovations but can also be fraught with risks like patent ambushes. Indian companies often face challenges such as patent disputes and border seizures from larger competitors. To prevent setbacks, exhibitors must proactively safeguard their intellectual property by employing legal strategies such as protective letters.
According to the Unified Patent Court’s website, a protective letter can be filed if a company anticipates that an application for provisional measures may be lodged against it. This pre-emptive statement outlines the party’s defense against the expected infringement claim and is already used in Germany and the Netherlands.
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Trade fairs provide companies with a prime platform to display their latest products and innovations to a diverse audience, including potential clients and the general public. However, in such a competitive environment, exhibitors must be vigilant about protecting their presentations from competitor interference. This protection can include measures against direct sabotage and ensuring that intellectual property, like patents, is safeguarded.
Germany is a leading venue for trade fairs globally, attracting hundreds of Indian companies to cities like Hannover and Frankfurt. As India advances in developing and exporting high-tech products, large Western corporations often try to block their entry into the market, frequently through lawsuits claiming patent infringement.
For instance, Polymed Medicure, an Indian medical device company, showcased its advanced IV catheter at the MEDICA trade fair in Germany. B. Braun alleged patent infringement and secured an ex-parte preliminary injunction against Polymed. As a result, all allegedly infringing IV catheters and promotional materials were seized, preventing Polymed from displaying its products and causing significant business losses. Although Polymed eventually won the infringement suits in both Germany and India, the business damage had already been done.
In Europe, border seizures are an effective method for protecting intellectual property (IP) rights. Under EU Regulation 1383/2003, patent holders can request border seizures for suspected infringing goods imported directly from non-EU countries into EU member states, such as from India to Germany. For potential infringers, countering a border seizure request is difficult because customs authorities do not thoroughly assess whether the goods genuinely infringe. Multinational corporations often use this tool to hinder smaller companies entering their markets and also enable them to take a close look at the seized product and literature.
At trade fairs, border seizures can prevent infringing goods from reaching the exhibition floor. Due to the short duration of these events, even a brief customs detention can disrupt a competitor’s ability to showcase new products.
Foreign companies, particularly SMEs from India, are often unaware of the precautions they can take to avoid such situations. Polymed could have been advised by its German lawyers to file a “protective letter” at the Unified Patent Court or the German Patent Court, which might have prevented an ex-parte decision.
According to the Unified Patent Court’s website, a protective letter can be filed if a company anticipates that an application for provisional measures may be lodged against it. This pre-emptive statement outlines the party’s defense against the expected infringement claim and is already used in Germany and the Netherlands. The protective letter should include reasons why provisional measures should be denied, with supporting facts, arguments for non-infringement, or patent invalidity.
If a preliminary injunction is sought, the court would first check for a protective letter, potentially scheduling an oral hearing to consider the arguments and evidence presented. This process helps avoid the surprise of sudden ex-parte seizures.
Suhayl Abidi is Research Advisor, GOG-AMA Centre of International Trade & Consultant, Centre for VUCA Studies, Amity University. Views expressed are personal and do not necessarily reflect the views of India Business and Trade.
