Sony can get around LG patent shipment ban

Sony could still get around the PS3 shipment ban thanks to a loop in the patent enforcement code.

That’s according to IP expert Florian Mueller who claims that patent enforcement in Europe is still a country-by-country affair.

He said in his blog that even though there is a European Patent Office order, Sony can work around the Dutch decision by going through entry points outside of the Netherlands. Although this has been described as a “logistical nightmare”, Mr Mueller says that it’s a possibility.

He added “Sony is most likely already exploring such alternative routes.”

The move by Sony follows orders by European customs officers to seize shipments of the games console after LG won a preliminary injunction against Sony in a patent battle. LG went crying to the courts in the Netherlands claiming that Sony had infringed on the use of several Blu-ray patents, which are owned by LG and found in the PS3s.

The ruling by the civil court of justice in the Hague means that all new PS3s have to be confiscated as they are imported into the UK and the rest of Europe for at least 10 days.

However, Sony is none too pleased – not surprising considering it imports 100,000 of the consoles a week.

The company is trying its best to get the ban lifted. However, while Sony is trying to get the courts to back peddle, LG is pushing the patents office to get the import ban extended, or worse get the consoles destroyed.

Rotterdam and Schiphol are the main import points for PS3s for both the UK and continental Europe. The consoles are being stockpiled in Dutch warehouses until it becomes clear how the case will develop.

All may not be lost. “Even if a lawsuit has been filed, there is still a potential way out,” points out Mr Mueller.

He claims that the “fragmentation of the European patent system may come in handy for Sony.”

“While the European Patent Office (EPO) performs the centralised examination of European patent applications, EPO patents are just bundles of national patents, each of which is assigned a national patent number and can be enforced only in the one country in which it is valid. This is going to change: the EU is in the process of creating a single EU patent and patent judiciary, but this will take years to come to fruition,” he said.

“The aforementioned European regulation requires a patent holder to claim an infringement only of a national patent. LG holds some Dutch patents that it apparently claims are infringed by the PS3, and didn’t have to allege the infringement of patents in any other EU member state.”

He said that this means the pre-judgment seizure order issued by the court in The Hague is valid only in the Netherlands. Therefore, if Sony ships PlayStations directly into other EU member states, the local customs authorities there will not take that seizure order into account.