Basic rules for determining patent infringement in Europe

The legal provisions for determining whether the accused constitutes infringement in European countries are not always coordinated with each other, and the differences in these legal provisions are mainly reflected in:

Firstly, the principles for determining the scope of patent protection are different;

Secondly, the proportion of consideration given to patent specifications in determining infringement varies;

Thirdly, will the application history of the patent be disclosed (such as the applicant's response to objections or invalidity opinions, or whether the applicant has modified the subject matter of the patent application documents, etc.);

Fourthly, the impact of the principle of equivalence (as stipulated in Article 69 of the European Patent Convention).

However, the European Patent Convention, EU laws and regulations (such as the Directive on Civil Enforcement of Intellectual Property Rights), and international conventions (such as the TRIPs Agreement) provide some guidelines and commonalities for identifying patent infringement issues, in order to coordinate the patent laws of various countries.

At present, if the opposition procedure at the European Patent Office is not considered after the European invention patent is granted, patent litigation needs to be conducted independently in each effective country. The litigation procedure in the effective country is the same as the litigation procedure for invention patents in that country.

The European Patent Office has prepared a 160 page document titled "Patent Litigation in Europe Overview of National Law and Practice in the EPC Contracting States" (5th edition, 2019). This document introduces the patent litigation systems of each of its 38 member countries one by one. The full electronic version of this information can be obtained from the link below on the website of the European Commission: https://www.epo.org/learning-events/materials/litigation.html

Regarding the case law of each member state, reference can be made to the "European Patent Convention Member State Case Law" published by the European Patent Office. The content of this case law will regularly select cases from European Patent Convention member states and classify them according to the different themes and regions involved in each case. Please refer to the following for the content introduction and download link:

Case Law of Member States of the European Patent Convention (2014-2016):

http://www.huasun.org/ipnews/567

Case Law of Member States of the European Patent Convention (2011-2014):

http://www.huasun.org/ipnews/351

More than half of the invention patent lawsuits in Europe are concentrated in Germany. The first instance of the patent infringement litigation procedure is conducted in the Landgericht, and the appeal is conducted in the Oberlandesgerichte. The first instance of invalidation proceedings is held at the Federal Patent Court (Bundespatentgericht) located in Munich, and the appeal is held at the Federal High Court (Bundesgerichtshof) in Germany. So, the two types of litigation procedures for infringement and invalidity are conducted separately in Germany.

           

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