The European Litigation Protocol and the Future European Patent System
Mondaq Business Briefing › Germany Law Articles in English (2001)
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The European Litigation Protocol and the Future European Patent System
I. Introduction
Europe's diversity in patent litigation has troubled patentees for many years. Not only that the level of experience of the courts is considerably different from country to country, also the lack of harmony even between experienced patent courts is visible if it comes to claim interpretation, but also with respect to procedural rules1. Another complaint is the fact that patents, even if they have been granted by the EPO, are territorially limited rights which can only be enforced with respect to one single country and by the respective national courts so that - in spite of the possibility of extraterritorial effects under the Brussels Convention - parallel litigation and resulting forum shopping remains possible. In most European countries the validity of a patent can be challenged by way of a counterclaim or as a defense in an infringement action, in others, like Germany, a separate revocation action must be filed with a separate special court. Of course, a validity decision would be limited to the respective country. The project of a Community Patent failed 25 years ago, since the governments could not agree on a common litigation system which at that time was to be a Common Court of Appeals (COPAC).Europe now has made a new move, and the Intergovernmental Conference of the Member State...See the full content of this document
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