Different 'Rules of the Game' - Impact of National Court Systems on Patent Litigation in the EU and the Need for New Perspectives

AuthorTamar Khuchua
PositionEarly Stage Researcher within the EIPIN Innovation Society European Joint Doctorate programme
Pages257-271
Different ‘Rules of the Game’
2019
257
2
Different ‘Rules of the Game’
Impact of National Court Systems on Patent Litigation in the
EU and the Need for New Perspectives
by Tamar Khuchua*
© 2019 Tamar Khuchua
Everybody may disseminate this ar ticle by electronic means and make it available for download under the terms and
conditions of the Digital P eer Publishing Licence (DPPL). A copy of the license text may be obtain ed at http://nbn-resolving.
de/urn:nbn:de:0009-dppl-v3-en8.
Recommended citation: Tamar Khuchua, Dif ferent ‘Rules of the Game’ – Impac t of National Court Systems on Patent
Litigation in the EU and the Nee d for New Perspectives, 10 (2019) JIPITEC 257 p ara 1.
Keywords: Patent litigation; fragmentation of patent litigation; divergent decisions; national patent courts;
Unitary Patent Package (UPP); Unified Patent Court (UPC); judicial harmonisation; European
guidelines; specialised courts; specialised tribunals; European Union (EU)
certainties and encounter different outcomes even
when the same patented invention is concerned. In
light of these differences in national systems and ju-
dicial practices, the European Commission in its 2017
Communication Paper on ‘A balanced IP enforcement
system responding to today’s societal challenges’,
urged the Member States to set up effective mecha-
nisms for IPR enforcement or to improve already ex-
isting systems. The article, looking at the specific ex-
amples of national judiciaries, outlines the differences
between the enforcement mechanisms and case law
across the Member States, it discusses the impact of
the cross-border patent enforcement in the EU, and
finally, it suggests possible solutions on an institu-
tional and methodological level for European judiciary
aiming at elimination of fragmented patent litigation
and fostering an innovation eco-system in the EU.
Abstract: “It seems that the jurisdiction in
which a case is litigated has a significant impact on
its outcome,” professor Lemley has addressed the is-
sue of forum shopping in the US and internationally,
and claims that the venue of litigation defines the
case outcome. Indeed, patent litigation is highly di-
verse especially in Europe. This is mainly derived from
the following reasons – more globalised Innovation
and R&D results in increased cross-border enforce-
ment with some inherent challenges. In addition, the
existence of different sets of rules and different na-
tional courts that hear the patent infringement and
invalidity cases in each European state makes the lit-
igation process quite complex. The country-specific
characteristics of patent litigation are considered as
an impediment for the development of harmonised
EU patent law. Both patentees and alleged infring-
ers, depending on the litigation venue, face legal un-
A. Introduction
1
This article draws special attention to the issue of
patent litigation in Europe and puts forward the
possible solutions for harmonising the judicial
practices in the EU. The article introduces the
issue starting from the historical developments of
the functioning of the judiciary in Europe in the
eld of patent law to today’s reality. The analysis
demonstrates the differences amongst the courts and
divergences in the case outcomes. This is rst done
by highlighting the courts’ structural differences in
the eld of patent law amongst the main European
jurisdictions (Germany, France and the UK), then the
approach towards the scope of the patent including
the doctrine of equivalents is scrutinised as these are
usually one of the main areas of patent law where the
courts disagree with each other and have historically
had different approaches. Following the general
analysis, the article moves on to the examination
of specic examples from the case law, particularly
concerning the divergent outcomes in relation to
patent infringement and validity.

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