An Important New Weapon In Pan-European Patent Disputes - The English Courts Can Hear Non-English Patent Infringement Cases
Keywords pan-European patent disputes, patent infringement,
Summary and implications
The English Patents Court has delivered a ground-breaking judgment which could change the way that European patent litigation is conducted. 1 It has significant strategic implications for companies involved in pan-European patent litigation, or who are crafting such strategies.
This judgment opens the way for litigants to seek seek pan-European declarations of non-infringement from a single court. It establishes that the English courts can now determine non-infringement disputes covering all of a European patent's national designations, not just the British national designation alone. The decision is significant for a number of reasons.
The English courts have handed litigants a major new weapon to fight their patent battles over multiple foreign patent rights. This case extends the convenient English procedure for patent infringement clearance2 of a European patent to include clearance of other relevant European designations through the mechanism of a single case seeking a pan-European declaration of non-infringement heard in England and - if agreed - under one law and with one set of expert witnesses and evidence. This new process will save significant costs and time, as well as allowing parties to take advantage of the procedural advantages inherent in the English common law system (document discovery, and cross-examination of expert and factual evidence at trial). It also eliminates the risk of inconsistent decisions inherent in the current European patent landscape; even if different national laws are applied by the one court, there would only be one judgment and one appeal process. This decision has important ramifications where infringement is simultaneously in issue in multiple European markets. But it will not apply where validity is in dispute, because under the Brussels Convention a challenge to validity engages the exclusive jurisdiction of each European country to determine challenges to the validity of their own national registered rights. Coupled with the recent Court of Justice of the European Union decision in Solvay v. Honeywell permitting interim pan-European injunctions in patent cases, which has been expressly acknowledged by the English Court, this opens the prospect for patent litigants of a real alternative to the current European patent litigation landscape (which requires separate litigation in each country). At a time when...
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