European Patent Law

B. Academic analysis: the role of universities and practitioners 133 C. Conclusions with regard to unification of the interpretation of European paten...

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European Patent Law Towards a Uniform Interpretation

Stefan Luginbuehl PhD, Lawyer, European Patent Office, Germany

Edward Elgar Cheltenham, UK • Northampton, MA, USA

Contents Preface Acknowledgments List of abbreviations and acronyms List of abbreviations and acronyms of books, documents and periodicals General introduction

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PART 1 NEW WAYS TO ACHIEVE A UNIFORM INTERPRETATION OF EUROPEAN PATENT LAW AND POSSIBLE SOLUTIONS TO THE PROBLEMS RELATED TO THEM ilised national patent courts Introduction A. Potential risks of specialised courts B. Dealing with those risks C. Demand for specialised patent courts France II. A. Courts of first instance B. Courts of further instance III. Germany A. Courts of first instance 1. Introduction 2. Split proceedings ('bifurcation') B. Courts of further instance IV. The Netherlands A. Courts of first instance B. Courts of further instance V. United Kingdom A. Courts of first instance B. Courts of further instance VI. Reasons for success of the German patent litigation system VII. Conclusion

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Forum shopping related to patent litigation in Europe I. Introduction A. Relevant provisions in regard to cross-border forum shopping II. Reasons for forum shopping A. Familiarity with the legal system B. Speed of the courts and quality of judgments C. Lis pendens rules 1. The European rules and their general impact on patent litigation in Europe 2. The approach in the draft Hague Jurisdiction Convention 3. The problem of'torpedoes' D. Provisional and protective measures E. Procedural differences and court practices 1. The kort geding procedure F. Damages G. Interpretation of European patent law and other substantive law H. Costs III. Possible and real problems related to cross-border forum shopping A. Limited number of experienced courts and abuse of the situation B. High litigation costs C. Forum non conveniens and anti-suit injunctions 1. Forum non conveniens 2. Anti-suit injunctions D. Inefficiency E. Inconsistency of choice of law rules and the problem of applying law taking effect abroad 1. The situation in Europe concerning choice of law rules 2. Applying law taking effect in another state F. Impact on the sovereignty of a state 1. Cross-border injunctions 2. Policy-making by applying law taking effect abroad and the problem of recognition IV. Forum shopping and the CJEU A. The CJEU's position B. Conclusion of the CJEU jurisprudence

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Contents

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Conclusions concerning cross-border forum shopping in Europe A. General B. Possible solution to the problems related to crossborder forum shopping 1. Limitation of the number of courts 2. Detailed check of a court's own jurisdiction 3. Danger of negative competence conflicts? 4. Principles of judicial cooperation between courts 5. Conclusion

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Conclusion in regard to the unification of interpretation and avoiding multiple litigation by way of specialised national courts and forum shopping

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Combination of concentration of litigation at the national level and other measures I. Judicial cooperation A. Cooperation among judges 1. Introduction 2. The Patent Judges' Symposia and their impact on a uniform interpretation 3. Exchanges between national judges, as well as between national judges and members of the EPO Boards of Appeal B. Academic analysis: the role of universities and practitioners C. Conclusions with regard to unification of the interpretation of European patent law by way of judicial cooperation II. Creation of 'best practices' as regards the interpretation of European patent law and common rules of interpretation III. Bodies giving opinions on European patent law A. Introduction 1. Key aspects with regard to a uniform interpretation B. The EPO Enlarged Board of Appeal 1. The EPO Enlarged Board of Appeal as a referral body for national authorities 2. Unification by constituting the EPO Enlarged Board of Appeal from national judges

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3. The EPO Enlarged Board of Appeal as basis for a European patent court of appeal C. The Facultative Advisory Council 1. History and background 2. Proposed principal regulations of the Facultative Advisory Council 3. Can the Facultative Advisory Council unify the interpretation? D. Conclusion with regard to unification of interpretation amongst bodies giving opinions on law IV. Harmonisation of court proceedings and substantive patent law A. Introduction B. Common rules regarding civil procedure at the European level 1. Introduction 2. The patchwork approach of the European Union 3. Uniform law concerning patent litigation C. Crucial points of procedure with an effect on the interpretation of European patent law 1. Provisional measures 2. Evidence D. Conclusion with regard to a unification of the interpretation of European patent law by way of a harmonisation of procedural law E. Harmonisation of substantive patent law V. Cross-border injunctions VI. Common court of appeal VII. National courts acting as European courts VIII. Conclusion

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PART 2 PROPOSALS FOR A COMMON PATENT COURT IN EUROPE 5.

The European Patent Court based on the proposal of the Working Party on Litigation of the European Patent Organisation I. History and development A. The first phase B. The second phase C. The third phase

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Structural and institutional provisions in the draft European Patent Litigation Agreement and the draft Statute of the European Patent Court A. The legal basis for the European Patent Litigation Agreement in the EPC B. The European Patent Judiciary 1. Organs of the European Patent Judiciary C. Judges 1. Requirements for office 2. Independence and impartiality of judges with a focus on the proposed possible double mandates 3. Legally and technically qualified judges 4. Appointment of the judges 5. End of term and removal from office 6. 'Assessor' 7. Assignment of the judges to the different divisions of the Court of First Instance D. Judicial panels Does the structure of the European Patent Judiciary fulfil the obligations under general international treaties? A. The Convention for the Protection of Human Rights and Fundamental Freedoms and the International Covenant on Civil and Political Rights of the United Nations B. TRIPs Agreement C. Further rights in the Charter of Fundamental Rights of the European Union 1. History and development of the Charter of Fundamental Rights of the European Union 2. Impact on the structure of the European Patent Court Conclusion with regard to proposed structure of the European Patent Court and its influence on creating a uniform jurisprudence, solving the problems of forum shopping, and avoiding multiple litigation

The patent court for Europe based on the proposals for an Agreement on the European and EU Patents Court (EEL PC)

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History and development A. The first phase B. The second phase

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C. The third phase D. The fourth phase Structural and institutional provisions in the draft Agreement on the European and EU Patents Court (EEUPCA) and in the draft Statute of the EEUPC A. Introduction B. Legal basis C. Detailed proposals 1. General provisions 2. The committees 3. The Court of First Instance 4. The Court of Appeal and the Role of the CJEU 5. The Presidents of the Court of First Instance and the Court of Appeal 6. The Presidium and Registry 7. Judges 8. Judicial panels

Summary and general conclusions

Bibliography Index

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