PATENT LITIGATION INSURANCE A study for the European Commission on the feasibility of possible insurance schemes against patent litigation risks APPENDICES TO THE FINAL REPORT June 26 CJA Consultants Ltd European Policy Advisers Britain and Brussels
Table of Contents of Appendices APPENDIX 1 - DETAILED STATISTICS FROM PATENT PRACTITIONERS DISCUSSIONS IN 1 MEMBER STATES PAGE 1.1 France 1 1.2 Germany 3 1.3 UK 5 1.4 Italy 7 1.5 Netherlands 9 1.6 Spain 11 1.7 Belgium 13 1.8 Austria 15 1.9 Sweden 17 1.1 Denmark 19 1.11 Finland 21 1.12 Greece 23 1.13 Poland 25 1.14 Czech Republic 27 1.15 Hungary 29 2 APPENDIX 2 - NATIONAL STATISTICS FOR EUROPEAN PATENTS PROVIDED TO INSURERS 2.1 France 31 2.2 Germany 32 2.3 UK 33 2.4 Netherlands 34 2.5 Spain 35 2.6 Belgium 36 2.7 Austria 37 2.8 Sweden 38 2.9 Denmark 39 2.1 Finland 4 2.11 Greece 41 2.12 Poland 42 2.13 Czech Republic 43
3.1 APPENDIX 3 - SUMMARY SHOWING COSTS OF LITIGATION PER PATENT IN FORCE IN 24 BY COUNTRY Consolidated, all countries 46 3.2 Austria 47 3.3 Belgium 48 3.4 Czech Republic 49 3.5 Denmark 5 3.6 Finland 51 3.7 France 52 3.8 Germany 53 3.9 Greece 54 3.1 Hungary 55 3.11 Netherlands 56 3.12 Poland 57 3.13 Spain 58 3.14 Sweden 59 3.15 UK 6 APPENDIX 4 - GRAPHICS OF COSTS (INCLUDING TO DAMAGES) PER YEAR PER PATENT IN FORCE 4 Consolidated, all countries 61 Austria 62 Belgium 63 Czech Republic 64 Denmark 65 Finland 66 France 67 Germany 68 Greece 69 Hungary 7 Netherlands 71 Poland 72 Spain 73 Sweden 74
UK 75 5 6 7 8 9 APPENDIX 5 THE INSURANCE QUESTIONNAIRE 76 APPENDIX 6 THE BUSINESS SPREADSHEET 82 APPENDIX 7- CEA MEETING NOTES APPENDIX 8- REPORT OF COMITÉ EUROPÉEN DES ASSURANCES APPENDIX 9 - CONTRIBUTION BY AN EXPERT INSURER IN THE INDIVIDUAL CAPACITY (DR. FRANK CUYPERS OF SWISS RE)
APPENDIX 1 - DETAILED STATISTICS FROM PATENT PRACTITIONERS DISCUSSIONS IN MEMBER STATES PAGE France 1 Germany 3 UK 5 Italy 7 Netherlands 9 Spain 11 Belgium 13 Austria 15 Sweden 17 Denmark 19 Finland 21 Greece 23 Poland 25 Czech Republic 27 Hungary 29
APPENDIX 1 NATIONAL STATISTICS EUROPEAN PATENTS AGREED IN DISCUSSIONS WITH PRACTITIONERS Country: France Year 1995 1996 1997 1998 1999 2 21 22 23 24 AVERAGE NUMBER OF Validations annually 27 579 21 468 27 69 36 959 46 793 45 89 EPs in force each year 252 289 Main litigations started at first instance 5 annually Main litigations fought through to judgment 25 at first instance annually Interlocutory injunction proceedings started 5 annually Interlocutory injunction proceedings fought 1 through to decision annually First instance main litigations settled before 5% judgment annually Interlocutory injunction proceedings settled 4 before decision annually Appeals from first instance judgments Steady for 1 years 2 initiated annually Appeals from interlocutory injunction proceedings initiated annually Appeals from first instance main litigation 15 settled before judgment annually Appeals from interlocutory injunction proceedings settled before judgment annually Appeals from main litigations fought through 5 to judgement annually Appeals from interlocutory injunction proceedings obtaining judgment annually Higher appeals annually 5 1
Country: France AVERAGE COST To each party of main litigation at first instance up to main hearing To each party of whole of main litigation at first instance to judgment To plaintiff of interlocutory injunction proceedings to judgment To defendant of interlocutory injunction proceedings to judgment To each party of settlement of main litigation before judgment To each party of settlement of interlocutory injunction proceedings before decision To each party of appeal up to main hearing To each party of whole of appeal to judgment To each party of settlement of appeal before judgment Steady in real terms for 1 years Plaintiff Defendant 8 7 Will be deducted from main costs 5 Will be deducted from main costs Plaintiff Defendant To each party of subsequent appeal AND Instance of settlement with agreed damages 7% Instance of award of damages by court Average damages agreed in cases other than pan European or global settlements Average damages awarded by court other than pan European or global cases Average cost awarded by court to winning party Average cost of assessment of infringement of one patent Average cost of assessment of validity of one patent 5 78 7 8 55 8 35 Only slight increase 5 Only slight increase 75 Gradually rising 1 1 1 2
NATIONAL STATISTICS EUROPEAN PATENTS AGREED IN DISCUSSIONS WITH PRACTITIONERS Country: Germany Year 1995 1996 1997 1998 1999 2 21 22 23 24 AVERAGE NUMBER OF Validations annually 2 911 32 687 43 53 59 713 EPs in force each year 252 814 261 171 277 848 37 488 Main litigations started at first instance annually Main litigations fought through to judgment at first instance annually Interlocutory injunction proceedings started annually Interlocutory injunction proceedings fought through to decision annually First instance main litigations settled before judgment annually Interlocutory injunction proceedings settled before decision annually Appeals from first instance judgments initiated annually Appeals from interlocutory injunction proceedings initiated annually Appeals from first instance main litigation settled before judgment annually Appeals from interlocutory injunction proceedings settled before judgment annually Appeals from main litigations fought through to judgement annually 25 Infringement 5 25 Nullity 5 2 Infringement 4 2 Nullity 4 25 5 25 5 1 Infringement 2 1 Nullity 2 12 25 17 Doubled in 1 years Infringement 35 12 Nullity 25 12 25 115 75 Infringement Nullity 65 Infringement 13 4 Nullity 8 Appeals from interlocutory injunction 12 25 proceedings obtaining judgment annually Higher appeals annually 5 1 23 15 3
Country: Germany AVERAGE COST To each party of main litigation at first instance up to main hearing To each party of whole of main litigation at first instance to judgment To plaintiff of interlocutory injunction proceedings to judgment To defendant of interlocutory injunction proceedings to judgment To each party of settlement of main litigation before judgment To each party of settlement of interlocutory injunction proceedings before decision To each party of appeal up to main hearing To each party of whole of appeal to judgment Infringement Nullity Infringement Nullity Infringement Nullity Infringement Nullity 75 75 15 15 15 15 1 1 2 2 1 1 To each party of settlement of appeal before judgment Infringement Nullity To each party of subsequent appeal 1 AND Instance of settlement with agreed damages 7% Instance of award of damages by court Average damages agreed in cases other than pan European or global settlements Average damages awarded by court other than pan European or global cases Average cost awarded by court to winning party Average cost of assessment of infringement of one patent Average cost of assessment of validity of one patent Steady in real terms for 1 years 5 25 1 1 1 4
NATIONAL STATISTICS EUROPEAN PATENTS AGREED IN DISCUSSIONS WITH PRACTITIONERS Country: UK Year 1995 1996 1997 1998 1999 2 21 22 23 24 AVERAGE NUMBER OF Validations annually 3 3 3 EPs in force each year 231 1 242 257 6 Main litigations started at first instance 12 annually Main litigations fought through to judgment 2 at first instance annually Interlocutory injunction proceedings started 1 annually Interlocutory injunction proceedings fought 1 through to decision annually First instance main litigations settled before 75 judgment annually Interlocutory injunction proceedings settled before decision annually Appeals from first instance judgments Steady for 1 years (currently includes County Courts) 3 initiated annually Appeals from interlocutory injunction proceedings initiated annually Appeals from first instance main litigation 2 settled before judgment annually Appeals from interlocutory injunction proceedings settled before judgment annually Appeals from main litigations fought through 1 to judgement annually Appeals from interlocutory injunction proceedings obtaining judgment annually Higher appeals annually 5
Country: UK AVERAGE COST To each party of main litigation at first Plaintiff 5 instance up to main hearing Defendant 35 To each party of whole of main litigation at Plaintiff 65 first instance to judgment Defendant 45 To plaintiff of interlocutory injunction 75 proceedings to judgment To defendant of interlocutory injunction 75 proceedings to judgment To each party of settlement of main litigation 4 before judgment To each party of settlement of interlocutory injunction proceedings before decision To each party of appeal up to main hearing 15 To each party of whole of appeal to judgment Steady in real terms for 1 years 225 To each party of settlement of appeal before 15 judgment To each party of subsequent appeal 3 AND Instance of settlement with agreed damages 3 Instance of award of damages by court Average damages agreed in cases other than pan European or global settlements Average damages awarded by court other than pan European or global cases Average cost awarded by court to winning party Average cost of assessment of infringement of one patent Average cost of assessment of validity of one patent 1 3 3 1 1 6
NATIONAL STATISTICS EUROPEAN PATENTS AGREED IN DISCUSSIONS WITH PRACTITIONERS Country: Italy Year 1995 1996 1997 1998 1999 2 21 22 23 24 AVERAGE NUMBER OF Validations annually 17 965 16 247 25 346 32 876 3 576 EPs in force each year Main litigations started at first instance annually Main litigations fought through to judgment at first instance annually Interlocutory injunction proceedings started annually Interlocutory injunction proceedings fought through to decision annually First instance main litigations settled before judgment annually Interlocutory injunction proceedings settled before decision annually Appeals from first instance judgments initiated annually Figures steady for 1 years Appeals from interlocutory injunction proceedings initiated annually Appeals from first instance main litigation settled before judgment annually Appeals from interlocutory injunction proceedings settled before judgment annually Appeals from main litigations fought through to judgement annually Appeals from interlocutory injunction proceedings obtaining judgment annually Higher appeals annually 7
Country: Italy AVERAGE COST To each party of main litigation at first 12 instance up to main hearing To each party of whole of main litigation at 7 first instance to judgment To plaintiff of interlocutory injunction proceedings to judgment To defendant of interlocutory injunction proceedings to judgment To each party of settlement of main litigation 3 before judgment To each party of settlement of interlocutory injunction proceedings before decision To each party of appeal up to main hearing 7 To each party of whole of appeal to judgment Figures steady for 1 years To each party of settlement of appeal before judgment To each party of subsequent appeal AND Instance of settlement with agreed damages Instance of award of damages by court Average damages agreed in cases other than 5 pan European or global settlements Average damages awarded by court other than pan European or global cases Average cost awarded by court to winning 15 party Average cost of assessment of infringement 1 of one patent Average cost of assessment of validity of one 1 patent 8
NATIONAL STATISTICS EUROPEAN PATENTS AGREED IN DISCUSSIONS WITH PRACTITIONERS Country: Netherlands Year 1995 1996 1997 1998 1999 2 21 22 23 24 AVERAGE NUMBER OF Validations annually 13 74 12 96 9 82 12 15 8 17 88 16 799 EPs in force each year 19 532 18 64 18 11 751 113 563 113 514 121 333 235 Main litigations started at first instance 3 32 35 4 45 5 annually Main litigations fought through to judgment 22 24 28 32 36 4 at first instance annually Interlocutory injunction proceedings started 18 2 22 24 27 3 annually Interlocutory injunction proceedings fought 18 2 22 24 27 3 through to decision annually First instance main litigations settled before judgment annually Interlocutory injunction proceedings settled before decision annually Appeals from first instance judgments 17 18 19 2 22 25 initiated annually Appeals from interlocutory injunction 12 13 14 15 proceedings initiated annually Appeals from first instance main litigation settled before judgment annually Appeals from interlocutory injunction proceedings settled before judgment annually Appeals from main litigations fought through 12 to judgement annually Appeals from interlocutory injunction 12 13 14 15 proceedings obtaining judgment annually Higher appeals annually 2 9
Country: Netherlands AVERAGE COST To each party of main litigation at first instance up to main hearing To each party of whole of main litigation at first instance to judgment To plaintiff of interlocutory injunction proceedings to judgment To defendant of interlocutory injunction proceedings to judgment To each party of settlement of main litigation before judgment To each party of settlement of interlocutory injunction proceedings before decision To each party of appeal up to main hearing 5 5 1 To each party of whole of appeal to judgment 85 To each party of settlement of appeal before judgment To each party of subsequent appeal 45 AND Instance of settlement with agreed damages 1 Instance of award of damages by court Average damages agreed in cases other than pan European or global settlements Average damages awarded by court other than pan European or global cases Average cost awarded by court to winning party Average cost of assessment of infringement of one patent Average cost of assessment of validity of one patent Steady over 1 years in real terms 7 5 1 1 5 5 6 1
NATIONAL STATISTICS EUROPEAN PATENTS AGREED IN DISCUSSIONS WITH PRACTITIONERS Country: Spain Year 1995 1996 1997 1998 1999 2 21 22 23 24 AVERAGE NUMBER OF Validations annually 14 48 13 634 14 124 14 441 13 813 11 126 1 272 17 543 21 395 19 93 EPs in force each year 8 285 29 173 86 648 8 713 97 146 Main litigations started at first instance 5 annually Main litigations fought through to judgment 35 at first instance annually Interlocutory injunction proceedings started annually Interlocutory injunction proceedings fought through to decision annually First instance main litigations settled before 25% judgment annually Interlocutory injunction proceedings settled before decision annually Appeals from first instance judgments 8% initiated annually Slow increase over 1 years Appeals from interlocutory injunction proceedings initiated annually Appeals from first instance main litigation 3% settled before judgment annually Appeals from interlocutory injunction proceedings settled before judgment annually Appeals from main litigations fought through 7% to judgement annually Appeals from interlocutory injunction proceedings obtaining judgment annually Higher appeals annually 11
Country: Spain AVERAGE COST To each party of main litigation at first 24 instance up to main hearing To each party of whole of main litigation at 4 first instance to judgment To plaintiff of interlocutory injunction proceedings to judgment To defendant of interlocutory injunction proceedings to judgment To each party of settlement of main litigation 24 before judgment To each party of settlement of interlocutory injunction proceedings before decision To each party of appeal up to main hearing 8 To each party of whole of appeal to judgment 26 To each party of settlement of appeal before 8 judgment To each party of subsequent appeal AND Steady over in real terms over 1 years Instance of settlement with agreed damages 3% Instance of award of damages by court Rare Average damages agreed in cases other than 5 pan European or global settlements Average damages awarded by court other Bond than pan European or global cases only Average cost awarded by court to winning 5% of party costs Average cost of assessment of infringement 6 of one patent Average cost of assessment of validity of one 6 patent 12
NATIONAL STATISTICS EUROPEAN PATENTS AGREED IN DISCUSSIONS WITH PRACTITIONERS Country: Belgium Year 1995 1996 1997 1998 1999 2 21 22 23 24 AVERAGE NUMBER OF Validations annually 11 965 11 417 8 556 1 958 14 671 19 266 19 157 EPs in force each year 78 279 78 579 76 82 77 299 78 761 82 212 84 626 Main litigations started at first instance 15 16 17 19 21 23 25 27 29 3 annually Main litigations fought through to judgment 4 4 5 5 6 6 7 7 8 8 at first instance annually Interlocutory injunction proceedings started 7 7 8 9 1 11 13 14 15 15 annually Interlocutory injunction proceedings fought 7 7 8 9 1 11 12 14 15 15 through to decision annually First instance main litigations settled before 6 7 7 8 8 9 1 11 12 12 judgment annually Interlocutory injunction proceedings settled before decision annually Appeals from first instance judgments 7 initiated annually Appeals from interlocutory injunction 1 proceedings initiated annually Appeals from first instance main litigation settled before judgment annually Appeals from interlocutory injunction proceedings settled before judgment annually Appeals from main litigations fought through 2 to judgement annually Appeals from interlocutory injunction 5 proceedings obtaining judgment annually Higher appeals annually 13
Country: Belgium AVERAGE COST To each party of main litigation at first 25 instance up to main hearing To each party of whole of main litigation at 5 first instance to judgment To plaintiff of interlocutory injunction 17 proceedings to judgment To defendant of interlocutory injunction 4 proceedings to judgment To each party of settlement of main litigation 4 before judgment To each party of settlement of interlocutory injunction proceedings before decision To each party of appeal up to main hearing To each party of whole of appeal to judgment 25 To each party of settlement of appeal before Steady in real terms over 1 years 8 judgment To each party of subsequent appeal AND Instance of settlement with agreed damages 6 Instance of award of damages by court Average damages agreed in cases other than pan European or global settlements Average damages awarded by court other than pan European or global cases Average cost awarded by court to winning party Average cost of assessment of infringement of one patent Average cost of assessment of validity of one patent 1 very rare 1 3 4 4 14
NATIONAL STATISTICS EUROPEAN PATENTS AGREED IN DISCUSSIONS WITH PRACTITIONERS Country: Austria Year 1995 1996 1997 1998 1999 2 21 22 23 24 AVERAGE NUMBER OF Validations annually 26 647 28 223 EPs in force each year 61 783 64 663 64 38 66 7 67 222 69 41 73 41 79 34 83 36 Main litigations started at first instance annually Main litigations fought through to judgment at first instance annually Interlocutory injunction proceedings started annually Interlocutory injunction proceedings fought through to decision annually First instance main litigations settled before judgment annually Interlocutory injunction proceedings settled before decision annually Appeals from first instance judgments initiated annually Appeals from interlocutory injunction proceedings initiated annually Appeals from first instance main litigation settled before judgment annually Appeals from interlocutory injunction proceedings settled before judgment annually Appeals from main litigations fought through to judgement annually Appeals from interlocutory injunction proceedings obtaining judgment annually Higher appeals annually Steady for 1 years Infringement Nullity Infringement Nullity Infringement Nullity 1 1 2 1 1 1 2 1 2 All 2 2 15
Country: Austria AVERAGE COST To each party of main litigation at first instance up to main hearing To each party of whole of main litigation at first instance to judgment To plaintiff of interlocutory injunction proceedings to judgment To defendant of interlocutory injunction proceedings to judgment To each party of settlement of main litigation before judgment To each party of settlement of interlocutory injunction proceedings before decision Infringement Nullity Infringement Nullity 12 4 11 11 13 To each party of appeal up to main hearing Steady over 1 years in real terms To each party of whole of appeal to Infringement 6 judgment Nullity 4 To each party of settlement of appeal before judgment To each party of subsequent appeal 2 AND Instance of settlement with agreed damages Rare Instance of award of damages by court Very rare Average damages agreed in cases other than pan European or global settlements Average damages awarded by court other than pan European or global cases Average cost awarded by court to winning party Average cost of assessment of infringement of one patent Average cost of assessment of validity of one patent 3 Very rare 9 1% 2 2 16
NATIONAL STATISTICS EUROPEAN PATENTS AGREED IN DISCUSSIONS WITH PRACTITIONERS Country: Sweden Year 1995 1996 1997 1998 1999 2 21 22 23 24 AVERAGE NUMBER OF Validations annually 9 65 8 455 6 798 12 77 13 225 12 37 EPs in force each year 77 893 78 488 78 725 78 247 76 759 79 223 81 14 81 981 82 125 Main litigations started at first instance 13 4 1 2 33 26 15 annually Main litigations fought through to judgment 1 at first instance annually Interlocutory injunction proceedings started 5 annually Interlocutory injunction proceedings fought 5 through to decision annually First instance main litigations settled before 3 judgment annually Interlocutory injunction proceedings settled before decision annually Appeals from first instance judgments 1 initiated annually Increasing slowly Appeals from interlocutory injunction 5 proceedings initiated annually Appeals from first instance main litigation 3 settled before judgment annually Appeals from interlocutory injunction proceedings settled before judgment annually Appeals from main litigations fought through 7 to judgement annually Appeals from interlocutory injunction 5 proceedings obtaining judgment annually Higher appeals annually 17
Country: Sweden AVERAGE COST To each party of main litigation at first 7 instance up to main hearing To each party of whole of main litigation at 11 first instance to judgment To plaintiff of interlocutory injunction 1 proceedings to judgment To defendant of interlocutory injunction 1 proceedings to judgment To each party of settlement of main litigation 7 before judgment To each party of settlement of interlocutory injunction proceedings before decision To each party of appeal up to main hearing 25 To each party of whole of appeal to judgment 65 To each party of settlement of appeal before 1% real increase in 1 years 5 judgment To each party of subsequent appeal AND Instance of settlement with agreed damages 15% Instance of award of damages by court 2 (very rare) Average damages agreed in cases other than 1 pan European or global settlements Average damages awarded by court other than pan European or global cases Average cost awarded by court to winning 1% party Average cost of assessment of infringement 15 of one patent Average cost of assessment of validity of one 15 patent 18
NATIONAL STATISTICS EUROPEAN PATENTS AGREED IN DISCUSSIONS WITH PRACTITIONERS Country: Denmark Year 1995 1996 1997 1998 1999 2 21 22 23 24 AVERAGE NUMBER OF Validations annually 2,852 6,444 5,738 4,159 6,82 8,113 7,418 EPs in force each year 42,33 44,113 45,67 Main litigations started at first instance annually 4 4 4 4 4 5 6 7 8 8 Main litigations fought through to judgment at first instance 1 1 1 annually Interlocutory injunction proceedings started annually 1 11 12 13 14 15 Interlocutory injunction proceedings fought through to decision 1 11 12 13 14 15 annually First instance main litigations settled before judgment annually Interlocutory injunction proceedings settled before decision annually Appeals from first instance judgments initiated annually Appeals from interlocutory injunction proceedings initiated 3 4 5 6 7 annually Appeals from first instance main litigation settled before judgment annually Appeals from interlocutory injunction proceedings settled 2 3 4 before judgment annually Appeals from main litigations fought through to judgement annually Appeals from interlocutory injunction proceedings obtaining 2 2 3 judgment annually Higher appeals annually 19
Country: Denmark AVERAGE COST To each party of main litigation at first instance up 1, 1, 1, 1, 1, 11, 12, 135, 15, 15, to main hearing To each party of whole of main litigation at first 6, 6, 6, 6, 6, 7, 8, 9, 8, 8, instance to judgment To plaintiff of interlocutory injunction proceedings 1, 1, 1, 1, 1, 11, 12, 135, 15, 15, to judgment To defendant of interlocutory injunction 1, 1, 1, 1, 1, 11, 12, 135, 15, 15, proceedings to judgment To each party of settlement of main litigation before 1, 1, 1, 1, 1, 11, 12, 135, 15, 15, judgment To each party of settlement of interlocutory injunction proceedings before decision To each party of appeal up to main hearing 1, 1, 1, 1, 1, 11, 12, 135, 15, 15, To each party of whole of appeal to judgment 15, 15, 15, 15, 15, 16, 17, 2, 23, 23, To each party of settlement of appeal before 1, 1, 1, 1, 1, 11, 12, 135, 15, 15, judgment To each party of subsequent appeal AND Instance of settlement with agreed damages Instance of award of damages by court Average damages agreed in cases other than pan European or global settlements Average damages awarded by court other than pan European or global cases Average cost awarded by court to winning party 13, Average cost of assessment of infringement of one 25, patent Steady in real terms Average cost of assessment of validity of one patent 25, 2
NATIONAL STATISTICS NATIONAL PATENTS AGREED IN DISCUSSIONS WITH PRACTITIONERS Country: Finland Year 1995 1996 1997 1998 1999 2 21 22 23 24 AVERAGE NUMBER OF Grants annually -- National patents 2 347 2 32 2 294 2 69 1 786 1 939 2 47 2 56 2 42 2 75 Validations annually European patents 6 13 71 1 45 1 833 4 259 6 266 4 759 EPs in force each year 7 88 13 362 17 825 National patents in force each year 19 22 19 529 19 878 2 274 19 5 19 377 19 43 19 11 18 61 18 234 Main litigations started at first instance 1 annually Main litigations fought through to judgment 4 at first instance annually Interlocutory injunction proceedings started 1 annually Interlocutory injunction proceedings fought through to decision annually 1 First instance main litigations settled before judgment annually Interlocutory injunction proceedings settled before decision annually Appeals from first instance judgments initiated annually Appeals from interlocutory injunction proceedings initiated annually Appeals from first instance main litigation settled before judgment annually Appeals from interlocutory injunction proceedings settled before judgment annually Appeals from main litigations fought through to judgement annually Appeals from interlocutory injunction proceedings obtaining judgment annually Higher appeals annually 21 Steady over 1 years National Patent figures 6 4 1 4 1
Country: Finland AVERAGE COST To each party of main litigation at first instance up to main hearing To each party of whole of main litigation at first instance to judgment To plaintiff of interlocutory injunction proceedings to judgment To defendant of interlocutory injunction proceedings to judgment To each party of settlement of main litigation before judgment To each party of settlement of interlocutory injunction proceedings before decision Infringement Nullity Infringement Nullity Infringement Nullity 65 65 87 87 6 65 65 To each party of appeal up to main hearing 2 To each party of whole of appeal to Small steady increase over 1 years in real terms Infringement 3 judgment Nullity 3 To each party of settlement of appeal before Infringement 2 judgment Nullity 2 To each party of subsequent appeal AND Instance of settlement with agreed damages Very rare Instance of award of damages by court Full costs Average damages agreed in cases other than pan European or global settlements Average damages awarded by court other than pan European or global cases Average cost awarded by court to winning party Average cost of assessment of infringement of one patent Average cost of assessment of validity of one patent 25 36 5 5 22
NATIONAL STATISTICS EUROPEAN PATENTS AGREED IN DISCUSSIONS WITH PRACTITIONERS Country: Greece Year 1995 1996 1997 1998 1999 2 21 22 23 24 AVERAGE NUMBER OF Validations annually 3 635 3 17 3 414 2 914 2 655 4 76 5 356 4 62 EPs in force each year 25 37 28 413 31 741 34 58 37 214 24 172 26 775 27 963 Main litigations started at first instance 2 annually Main litigations fought through to judgment 18 at first instance annually Interlocutory injunction proceedings started 2 annually Interlocutory injunction proceedings fought 2 through to decision annually First instance main litigations settled before judgment annually Interlocutory injunction proceedings settled before decision annually Appeals from first instance judgments Steady 1 years 3 initiated annually Appeals from interlocutory injunction 3 proceedings initiated annually Appeals from first instance main litigation settled before judgment annually Appeals from interlocutory injunction proceedings settled before judgment annually Appeals from main litigations fought through 3 to judgement annually Appeals from interlocutory injunction 3 proceedings obtaining judgment annually Higher appeals annually 23
Country: Greece AVERAGE COST To each party of main litigation at first Incl. interlocutory costs 1 instance up to main hearing Steady over 1 years in real terms To each party of whole of main litigation at Incl. interlocutory costs 2 first instance to judgment To plaintiff of interlocutory injunction proceedings to judgment To defendant of interlocutory injunction proceedings to judgment Steady over 1 years in real terms To each party of settlement of main litigation before judgment To each party of settlement of interlocutory injunction proceedings before decision To each party of appeal up to main hearing To each party of whole of appeal to judgment Steady over 1 years in real terms Incl. interlocutory costs 1 To each party of settlement of appeal before judgment To each party of subsequent appeal AND Instance of settlement with agreed damages Very few Instance of award of damages by court Very few Average damages agreed in cases other than 2 pan European or global settlements Average damages awarded by court other Steady over 1 years in real terms 2 than pan European or global cases Average cost awarded by court to winning 1 party Average cost of assessment of infringement 5 of one patent Average cost of assessment of validity of one patent 5 24
NATIONAL STATISTICS NATIONAL PATENTS AGREED IN DISCUSSIONS WITH PRACTITIONERS Country: Poland Year 1995 1996 1997 1998 1999 2 21 22 23 24 AVERAGE NUMBER OF Grants annually -- National patents 2 745 2 18 2 2 2 47 Validations annually European patents Commenced March 25 (1 validated) EPs in force each year 1 in 25 National patents in force each year 12 451 Main litigations started at first instance Infringement 1 11 12 14 15 annually nullity 1 11 12 14 15 Main litigations fought through to judgment Infringement 6 7 8 9 1 at first instance annually nullity 6 7 8 9 1 Interlocutory injunction proceedings started 15 annually Interlocutory injunction proceedings fought 1 through to decision annually First instance main litigations settled before judgment annually Interlocutory injunction proceedings settled before decision annually Appeals from first instance judgments All national patent figures Infringement 5 6 7 8 9 initiated annually nullity 5 6 7 8 9 Appeals from interlocutory injunction proceedings initiated annually Appeals from first instance main litigation settled before judgment annually Appeals from interlocutory injunction proceedings settled before judgment annually Appeals from main litigations fought through 5 6 7 8 9 to judgement annually Appeals from interlocutory injunction 1 proceedings obtaining judgment annually Higher appeals annually 25
Country: Poland AVERAGE COST To each party of main litigation at first instance up to main hearing To each party of whole of main litigation at first instance to judgment To plaintiff of interlocutory injunction proceedings to judgment To defendant of interlocutory injunction proceedings to judgment To each party of settlement of main litigation before judgment To each party of settlement of interlocutory injunction proceedings before decision Infringement nullity Infringement nullity Infringement nullity 15 3 2 8 To each party of appeal up to main hearing Steady in real terms over 1 years 5 To each party of whole of appeal to judgment 5 To each party of settlement of appeal before judgment To each party of subsequent appeal AND Instance of settlement with agreed damages Instance of award of damages by court Average damages agreed in cases other than pan European or global settlements Average damages awarded by court other than pan European or global cases Average cost awarded by court to winning party Average cost of assessment of infringement of one patent Average cost of assessment of validity of one patent 15 3 2 5 5 26
NATIONAL STATISTICS NATIONAL PATENTS AGREED IN DISCUSSIONS WITH PRACTITIONERS Country: Czech Republic Year 1995 1996 1997 1998 1999 2 21 22 23 24 AVERAGE NUMBER OF Grants annually -- National patents 1 299 1 29 1 447 1 451 1 482 1 611 1 719 1 85 1 82 1 514 Validations annually European patents (25: 452) EPs in force each year (25: 557) National patents in force each year 987 Main litigations started at first instance 8 annually Main litigations fought through to judgment 1 at first instance annually Interlocutory injunction proceedings started 8 annually Interlocutory injunction proceedings fought 1 through to decision annually First instance main litigations settled before 7 judgment annually Interlocutory injunction proceedings settled before decision annually Figures steady Appeals from first instance judgments 1 initiated annually Appeals from interlocutory injunction proceedings initiated annually Appeals from first instance main litigation settled before judgment annually Appeals from interlocutory injunction proceedings settled before judgment annually Appeals from main litigations fought through 1 to judgement annually Appeals from interlocutory injunction proceedings obtaining judgment annually Higher appeals annually 27
Country: Czech Republic AVERAGE COST To each party of main litigation at first instance up to main hearing To each party of whole of main litigation at first instance to judgment To plaintiff of interlocutory injunction proceedings to judgment To defendant of interlocutory injunction proceedings to judgment To each party of settlement of main litigation before judgment Infringement nullity Infringement nullity Infringement nullity To each party of settlement of interlocutory injunction proceedings before decision To each party of appeal up to main hearing To each party of whole of appeal to judgment 4 To each party of settlement of appeal before judgment To each party of subsequent appeal 4 5 AND Instance of settlement with agreed damages Instance of award of damages by court Average damages agreed in cases other than pan European or global settlements Average damages awarded by court other than pan European or global cases Average cost awarded by court to winning party Average cost of assessment of infringement of one patent Average cost of assessment of validity of one patent Steady in real terms over 1 years 11 11 6 5 6 5 4 4 1 5 5 28
NATIONAL STATISTICS NATIONAL PATENTS AGREED IN DISCUSSIONS WITH PRACTITIONERS Country: Hungary Year 1995 1996 1997 1998 1999 2 21 22 23 24 AVERAGE NUMBER OF Grants annually -- National patents 1 371 1 995 1 627 1 36 1 555 1 379 977 Validations annually European patents EPs in force each year National patents in force each year 11 13 11 418 11 84 1 927 1 784 1 385 9 513 Main litigations started at first instance annually Main litigations fought through to judgment at first instance annually Interlocutory injunction proceedings started annually Interlocutory injunction proceedings fought through to decision annually First instance main litigations settled before judgment annually Interlocutory injunction proceedings settled before decision annually Appeals from first instance judgments initiated annually Appeals from interlocutory injunction proceedings initiated annually Appeals from first instance main litigation settled before judgment annually Appeals from interlocutory injunction proceedings settled before judgment annually Appeals from main litigations fought through to judgement annually Appeals from interlocutory injunction proceedings obtaining judgment annually Higher appeals annually 29 Steady Infringement nullity Infringement nullity Infringement nullity Infringement nullity 7 7 3 3 7 3 4 4 3 3 3 3 3 3
Country: Hungary AVERAGE COST To each party of main litigation at first instance up to main hearing To each party of whole of main litigation at first instance to judgment To plaintiff of interlocutory injunction proceedings to judgment To defendant of interlocutory injunction proceedings to judgment To each party of settlement of main litigation before judgment To each party of settlement of interlocutory injunction proceedings before decision To each party of appeal up to main hearing To each party of whole of appeal to judgment Infringement nullity Infringement nullity To each party of settlement of appeal before judgment To each party of subsequent appeal AND Instance of settlement with agreed damages Instance of award of damages by court Average damages agreed in cases other than pan European or global settlements Average damages awarded by court other than pan European or global cases Average cost awarded by court to winning party Average cost of assessment of infringement of one patent Average cost of assessment of validity of one patent Steady over 1 years in real terms 2 1 5 2 5 5 1 75 2 1 3
APPENDIX 2 - NATIONAL STATISTICS FOR EUROPEAN PATENTS PROVIDED TO INSURERS France 31 Germany 32 UK 33 Netherlands 34 Spain 35 Belgium 36 Austria 37 Sweden 38 Denmark 39 Finland 4 Greece 41 Poland 42 Czech Republic 43 Hungary 44
31 NATIONAL STATISTICS FOR EUROPEAN PATENTS PROVIDED TO INSURERS Jurisdiction: France France 1. Year 1995 1996 1997 1998 1999 2 21 22 23 24 France 2. No. of European Patents Validated 27,579 21,468 27,69 36,959 46,793 45,89 France 3. No. of European Patents in Force 252,798 France 4. No. of Patent Actions commenced (including 4 41 42 44 45 46 47 48 49 5 Preliminary Injunctions) France 5. No. of Actions which reach First Instance 2 2 21 21 22 23 24 24 25 25 Judgment France 6. No. of Appeals Filed 15 15 15 16 17 17 18 19 2 2 France 7. No. of Appeals which reach Judgment 3 3 3 4 4 4 5 5 5 France 8. No. of Higher Appeals which reach Judgment 3 3 3 4 4 4 5 5 5 France 9. No. of Cases Settled with Agreed Damages 2 21 22 23 24 25 26 27 29 France 1. No. of Actions with substantial Damages ordered France 11. Average Total Litigation Cost to each side at First Instance of: France (a) Settlement before Main Court Hearings Plaintiff 8, Steady in real terms over 1 years Defendant France (b) Litigation ending with First Instance Plaintiff 78, Judgment Steady in real terms over 1 years Defendant 7, France 12. Average Total Cost to each side at Appeal Stages of: France (a) Settlement during First Appeal Proceedings 8, France (b) First Appeal Proceedings including 5, Judgment France (c) Further Appeals including Judgments Steady in real terms over 1 years 35, France 13. Average Damages awarded by Court 75, France 14. Average Damages agreed in Settlements 5, France 15. Average cost of assessing Infringement and 2, Validity of a Patent France 16. Costs awarded by Court 1,
32 Jurisdiction: Germany NATIONAL STATISTICS FOR EUROPEAN PATENTS PROVIDED TO INSURERS Germany 1. Year 1995 1996 1997 1998 1999 2 21 22 23 24 Germany 2. No. of European Patents Validated 2,911 32,687 43,53 59,713 Germany 3. No. of European Patents in Force 252,814 261,171 277,848 37,488 Germany 4. No. of Patent Actions commenced 25 Infringement 5 Germany (including Preliminary Injunctions) 25 Doubled over 1 years Validity 5 Germany 5. No. of Actions which reach First Instance 2 Infringement 4 Germany Judgment 2 Doubled over 1 years Validity 4 Germany 6. No. of Appeals 175 Infringement 35 Germany Filed 125 Doubled over 1 years Validity 25 Germany 7. No. of Appeals 65 Infringement 13 Germany which reach Judgment 4 Doubled over 1 years Validity 8 Germany 8. No. of Higher Appeals which reach Judgment 5 Doubled over 1 years Infringement only 1 Germany 9. No. of Cases Settled with Agreed Damages 35 Doubled over 1 years 7 1. No. of Actions with substantial Damages Germany ordered Germany 11. Average Total Litigation Cost to each side at First Instance of: Germany Remained steady for 1 years in real Infringement 9, Germany (a) Settlement before Main Court Hearings terms Validity 75, Germany (b) Litigation ending with First Instance Remained steady for 1 years in real Infringement 165, Germany Judgment terms Validity 15, Germany Germany 12. Average Total Cost to each side at Appeal Stages of: Germany (a) Settlement during First Appeal Remained steady for 1 years in real Infringement 1, Germany Proceedings terms Validity 1, Germany (b) First Appeal Proceedings including Remained steady for 1 years in real Infringement 2, Germany Judgment terms Validity 2, Germany (c) Further Appeals including Judgments Infringement only 1, Germany 13. Average Damages awarded by Court This figure includes costs ordered 25, Germany 14. Average Damages agreed in Settlements 5, Germany 15. Average cost of assessing Infringement and Validity of a Patent 2,
Germany 16. Costs awarded by Court 1, 33 Jurisdiction:UK NATIONAL STATISTICS FOR EUROPEAN PATENTS PROVIDED TO INSURERS UK 1. Year 1995 1996 1997 1998 1999 2 21 22 23 24 UK 2. No. of European Patents Validated UK approximation 3, 3, 3, UK 3. No. of European Patents in Force 231,1 242, 257,6 UK 4. No. of Patent Actions commenced (including Preliminary Injunctions) 12 Figures steady 12 UK 5. No. of Actions which reach First Instance Judgment 2 Figures steady 2 UK 6. No. of Appeals Filed 3 Figures steady 3 UK 7. No. of Appeals which reach Judgment 1 Figures steady 1 UK 8. No. of Higher Appeals which reach Judgment Figures steady UK 9. No. of Cases Settled with Agreed Damages 3 Figures steady 3 UK 1. No. of Actions with substantial Damages ordered 1 Figures steady 1 UK 11. Average Total Litigation Cost to each side at First Instance of: UK Steady in real terms over 1 Patentee 5, UK (a) Settlement before Main Court Hearings years Defendant 4, UK (b) Litigation ending with First Instance Steady in real terms over 1 Patentee 65, UK Judgment years Defendant 5, UK UK 12. Average Total Cost to each side at Appeal Stages of: UK (a) Settlement during First Appeal Proceedings Steady in real terms over 1 years 225, UK (b) First Appeal Proceedings including Judgment Steady in real terms over 1 years 43, UK (c) Further Appeals including Judgments Steady in real terms over 1 years 3, UK 13. Average Damages awarded by Court
UK 15. Average cost of assessing Infringement and Validity of a Patent 2, UK 16. Costs awarded by Court 36, 34 NATIONAL STATISTICS FOR EUROPEAN PATENTS PROVIDED TO INSURERS Jurisdiction: Netherlands Netherlands 1. Year 1995 1996 1997 1998 1999 2 21 22 23 24 Netherlands 2. No. of European Patents Validated 13,74 12,96 9,82 12, 15,8 17,88 16,799 Netherlands 3. No. of European Patents in Force 19,523 18,245 18,235 11,751 113,563 117,514 121,337 Netherlands 4. No. of Patent Actions commenced Netherlands (including Preliminary Injunctions) 3 32 35 4 45 5 5. No. of Actions which reach First Instance Netherlands 6. No. of Appeals Filed 12 18 19 2 22 25 Netherlands 7. No. of Appeals which reach Judgment 12 13 14 15 Netherlands 8. No. of Higher Appeals which reach Judgment 22 24 28 32 36 4 Netherlands Judgment 9. No. of Cases Settled with Agreed 2 2 2 2 2 2 Netherlands 1. No. of Actions with substantial Damages Damages 1 1 1 1 1 1 Netherlands ordered 11. Average Total Litigation Cost to each side at First Instance of: Netherlands (a) Settlement before Netherlands Main Court Hearings Costs steady in real terms over 1 years 8, (b) Litigation ending with First Instance Netherlands Netherlands Netherlands Judgment Costs steady in real terms over 1 years 16, 12. Average Total Cost to each side at Appeal Stages of: (a) Settlement during First Appeal Proceedings Netherlands (b) First Appeal Proceedings including Judgment Costs steady in real terms over 1 years 85, Netherlands (c) Further Appeals including Judgments Costs steady in real terms over 1 years 45, Netherlands 13. Average Damages awarded by Court
Netherlands 14. Average Damages agreed in Settlements Netherlands 15. Average cost of assessing Infringement 1, and Validity of a Patent Costs steady in real terms over 1 years 11, Netherlands 16. Costs awarded by Court 1,5 35 NATIONAL STATISTICS FOR EUROPEAN PATENTS PROVIDED TO INSURERS Jurisdiction: Spain Spain 1. Year 1995 1996 1997 1998 1999 2 21 22 23 24 Spain 2. No. of European Patents Validated 14,48 13,634 14,124 11,441 13,813 11,126 1,272 17,543 21,345 19,93 Spain 3. No. of European Patents in Force 8,285 29,173 8,648 8,713 97,146 Spain Spain 4. No. of Patent Actions commenced (including Preliminary Injunctions) 45 5 5. No. of Actions which reach First Instance Judgment 3 35 Spain 6. No. of Appeals Filed 27 3 Spain 7. No. of Appeals which reach Judgment 18 2 Spain 8. No. of Higher Appeals which reach Judgment Slow increase Spain 9. No. of Cases Settled with Agreed Damages 13 15 Spain Spain Spain 1. No. of Actions with substantial Damages ordered 1 1 11. Average Total Litigation Cost to each side at First Instance of: (a)settlement before Main Court Hearings 24, Spain (b) Litigation ending with First Instance Judgment Steady over 1 years in real terms 4, Spain 12. Average Total Cost to each side at Appeal Spain Stages of: Spain (a) Settlement during First Appeal Proceedings 8, Spain (b) First Appeal Proceedings including Judgment 26, Spain (c) Further Appeals including Judgments Steady over 1 years in real terms Spain 13. Average Damages awarded by Court
Spain 14. Average Damages agreed in Settlements 5, Spain 15. Average cost of assessing Infringement and Validity of a Patent 12, Spain 16. Costs awarded by Court 5% 36 Jurisdiction: Belgium NATIONAL STATISTICS FOR EUROPEAN PATENTS PROVIDED TO INSURERS Belgium 1. Year 1995 1996 1997 1998 1999 2 21 22 23 24 Belgium 2. No. of European Patents Validated 11,965 11,417 8,558 1,958 14,671 19,266 19,157 Belgium 3. No. of European Patents in Force 78,279 78,579 76,82 77,259 78,761 82,212 84,621 Belgium 4. No. of Patent Actions commenced (including Preliminary Injunctions) 15 16 17 19 21 21 23 25 27 3 Belgium 5. No. of Actions which reach First Instance Judgment 7 7 9 1 11 13 14 15 15 15 Belgium 6. No. of Appeals Filed 6 6 6 7 7 7 8 8 9 1 Belgium 7. No. of Appeals which reach Judgment 4 4 5 5 5 6 6 7 7 7 Belgium 8. No. of Higher Appeals which reach Judgment Belgium 9. No. of Cases Settled with Agreed Damages Belgium 1. No. of Actions with substantial Damages ordered Belgium 11. Average Total Litigation Cost to each side at First Instance of: Belgium (a) Settlement before Main Court Hearings Steady in real terms over 1 years 25, Belgium (b) Litigation ending with First Instance Plaintiff 65, Belgium Judgment Steady in real terms over 1 years Defendant 85, Belgium Belgium 12. Average Total Cost to each side at Appeal Stages of: Belgium (a) Settlement during First Appeal proceedings (b) First Appeal Proceedings including Belgium Judgment Steady in real terms over 1 years 25, Belgium (c) Further Appeals including Judgments Steady in real terms over 1 years
Belgium 13. Average Damages awarded by Court 1, Belgium 14. Average Damages agreed in Settlements 1, 15. Average cost of assessing Infringement Belgium and Validity of a Patent 8, Belgium 16. Costs awarded by Court 3 37 Jurisdiction: Austria NATIONAL STATISTICS FOR EUROPEAN PATENTS PROVIDED TO INSURERS Austria 1. Year 1995 1996 1997 1998 1999 2 21 22 23 24 Austria 2. No. of European Patents Validated 26,647 28,223 Austria 3. No. of European Patents in Force 61,783 64,63 66,38 68,7 67,222 69,124 73,41 79,344 83,636 Austria 4. No. of Patent Actions commenced (including 1 Infringement 1 Austria Preliminary Injunctions) 1 Steady for 1 years Validity 1 Austria 5. No. of Actions which reach First Instance 1 Infringement 1 Austria Judgment 1 Steady for 1 years Validity 1 Austria 6. No. of Appeals Filed 2 Steady for 1 years 2 Austria 7. No. of Appeals which reach Judgment 2 Steady for 1 years 2 Austria 8. No. of Higher Appeals which reach Judgment 2 Steady for 1 years 2 Austria 9. No. of Cases Settled with Agreed Damages Austria 1. No. of Actions with substantial Damages ordered Austria 11. Average Total Litigation Cost to each side at First Instance of: Austria (a) Settlement before Infringement 23, Austria Main Court Hearings Validity 4, Austria (b) Litigation ending with First Instance Steady in real terms over 1 years Infringement 23, Austria Judgment Validity 4, Austria Austria 12. Average Total Cost to each side at Appeal Stages of: Austria (a) Settlement during First Appeal Proceedings Austria (b) First Appeal Proceedings Infringement 6, Austria including Judgment Steady in real terms over 1 years Validity 4, Austria (c) Further Appeals including Judgments 2, Austria 13. Average Damages awarded by Court
Austria 14. Average Damages agreed in Settlements 3, 15. Average cost of assessing Infringement and Austria Validity of a Patent 4, Austria 16. Costs awarded by Court 1% 38 Jurisdiction: Sweden NATIONAL STATISTICS FOR EUROPEAN PATENTS PROVIDED TO INSURERS Sweden 1. Year 1995 1996 1997 1998 1999 2 21 22 23 24 Sweden 2. No. of European Patents Validated 9,65 8,455 6,798 12,77 13,225 12,37 Sweden 3. No. of European Patents in Force 77,893 78,488 78,325 79,247 76,759 79,223 83,45 81,981 82,125 Sweden Sweden 4. No. of Patent Actions commenced (including Preliminary Injunctions) 12 15 5. No. of Actions which reach First Instance Judgment 8 1 Sweden 6. No. of Appeals Filed 8 Figures increasing slowly 1 Sweden 7. No. of Appeals which reach Judgment 5 7 Sweden 8. No. of Higher Appeals which reach Judgment Sweden 9. No. of Cases Settled with Agreed Damages 1 1 Sweden 1. No. of Actions with substantial Damages ordered 1 1 Sweden 11. Average Total Litigation Cost to each side at First Instance of: Sweden (a) Settlement before Main Court Hearings 7, Sweden (b) Litigation ending with First Instance Judgment 1% real increase in ten years 12, Sweden Sweden 12. Average Total Cost to each side at Appeal Stages of: Sweden (a) Settlement during First Appeal Proceedings 1% real increase in ten years 25, Sweden (b) First Appeal Proceedings including Judgment 65, Sweden (c) Further Appeals including Judgments Sweden 13. Average Damages awarded by Court 2,