Patent Litigation in Europe - Presence and Future

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1 Patent Litigation in Europe - Presence and Future Innovation Support Training Program (ISTP) Module 2 / November 27, 2006 Christian W. Appelt German and European Patent and Trademark Attorney

2 Patent Litigation Procedures Territorial Rights Enforcement in principal national National Court Systems vary (DE: 13 specialized District Courts) Effect generally only nation-wide Cross-Border Litigation in Europe? Related Patents, national parts of EPC patent Defendant domiciled in country of dispute Remarkably restricted by recent dec. ECJ

3 Jurisdictions Key jurisdictions: UK, Germany and the Netherlands Important jurisdictions: France, Italy and Spain No deposition, no extensive discovery No juries

4 Courts and Judges UK: Patents County Court and Patents Court Germany: bifurcated Invalidity actions specialist Federal Patent Court in Munich Infringement actions: special chambers hearing IP actions, 50 per cent in Düsseldorf Netherlands: specialist exclusive jurisdiction for patents

5 Discovery/Disclosure UK: most like the US unlike rest of Europe: Mandatory obligation, search limited by proportionality Implied undertaking: disclosure cannot be used for other purposes Germany: historically, no provision for any discovery, although: Inspection of the allegedly infringing device is possible in principle New powers to order production of relevant documents

6 Financial Compensation Purely compensatory: no triple damages UK, Germany, Netherlands, Spain: Damages (reasonable royalty, profits gained, profits lost) / an account of profits France and Italy: Damages, no account of profits

7 Infringing Activities Products: Manufacturing Offering / Selling Import/Export Use of patented product Damages, no account of profits Method: Use Product being manufactured by protected method

8 Article 69 EPC and Protocol Article 69(1) EPC The extent of the protection conferred by a European patent or a European patent application shall be determined by the terms of the claims. Nevertheless, the description and drawings shall be used to interpret the claims.

9 Article 69 EPC and Protocol Article 69 (Protocol) Article 69 should not be interpreted in the sense that the extent of the protection conferred by a European patent is to be understood as that defined by the strict, literal meaning of the wording used in the claims, the description and drawings being employed only for the purpose of resolving an ambiguity found in the claims.

10 Article 69 EPC and Protocol Article 69 (Protocol) Neither should it be interpreted in the sense that the claims serve only as a guideline and that the actual protection conferred may extend to what, from a consideration of the description and drawings by a person skilled in the art, the patentee has contemplated. On the contrary, it is to be interpreted as defining a position between these extremes which combined a fair protection for the patentee with a reasonable degree of certainty for third parties.

11 Infringing Activities Literal Infringement: All features of at least one claim are realized Equivalent Infringement: One or more features of the claim are realized by equivalent means Direct Infringement Indirect Infringements Essential elements of the invention are provided

12 Defense Argumentation - I Product does not infringe Out of scope of protection Slightly dependent on jurisdiction Language? (national, max: language of proceedings) (patent) right exhausted (Patent) right is not valid? Country / IPR dependent DE: Utility Model (unexamined) (+) DE: Patent (national/epc) (-) Separate Invalidation / Nullity procedure Generally nation-wide (but, EPC-opposition)

13 Defense Argumentation - II Prior Use Right Not freely transferable Can be sold with the complete business Amendments might be restricted Research Exemption Exhaustion of Patent Rights Internationally: No EU-common market exhaustion Product/Method is within the Prior Art Only in case of Equivalency DE: Formsteineinwand

14 Time Frame and Costs Extremely Country Dependent (DE.IT, US, ) 1 st instance decision: 1-5 years 2 nd instance decision: 1-5 years Cost risk Generally dependent on amount of dispute Losing party has to reimburse cost/fees? DE: 1 year, Euro to cost risk reimbursement US: 2..3 years, each year US$ to No reimbursement

15 Interlocutory Injunction Einstweilige Verfügung (Germany) Schutzschrift (Protective Writ) Action en referée (France) Kort geding (summary proceedings to obtain a preliminary injunction (Netherlands) Provisional injunctive measures (Belgium, Spain, Italy, Denmark, Sweden)

16 European Patent Litigation Protocol European patent is a bundle of national patents Litigated in national courts and under national patent laws Group of EPC contracting states are negotiating a protocol for a single court system Includes UK, the Netherlands, Germany, France Objective: to create single 1st and 2nd instance court for infringement and validity Leaves some issues for national courts Enforcement Interlocutory injunctions

17 European Patent Litigation Protocol EPC Patents EPLP 4th Proposal (WPL/SUB 2/02, 31/05/02) EP Patent Court Structure Court of First Instance Central Division (Luxembourg?) Regional Divisions Court of Appeal Central (Luxembourg?)

18 EPLP Regional Divisions National or Regional At Start: max. 1 per Country After 3 Years: up to 3 per Country/Region if more than 100 cases annually heard in Country/Region Certainly Germany!

19 EP Patent Court Competence Litigation with Effect for all Countries chosen Revocation/Invalidation with Effect for all Countries chosen Countries involved to be chosen by Plaintiff

20 Miscellaneous Provisions Languages English, French, or German depending on EPC Language of proceedings 7 years Transition Competence of national Courts Effects of Decisions only nationally EP Court considered as National Court for EU (Art. 234 EU Treaty)

21 Problems. For initial 3 years: Only 1 Regional Division, e.g. in Germany No factual arguments in Appeal No sole representation by Patent Attorneys, even in Invalidation Actions

22 Further Questions? Contact me at: Christian W. Appelt Boehmert & Boehmert Pettenkoferstr D Munich Germany Tel.: Fax:

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