Litigation Strategies in Europe MIP Global IP & Innovation Summit Paul Brown, Partner, London 4 September 2013 What will this talk cover? What factors does a litigant need to consider when litigating patents in Europe? What are the features of the main jurisdictions? Germany The UK The Netherlands Italy France 2 1
Why should you listen? European population is 1.5x that of the USA Patent litigation is now in the news more than ever Economic circumstances mean that more parties are seeking to monetise their portfolios The risk of patent litigation in Europe cannot be ignored! 3 Some of the "basics" 4 2
The "basics" Patents are national rights, although there is a proposal to introduce a European Unitary patent. Inventors usually apply for patents in their most important markets; and/or where their competitors are based or manufacturing. Patents are litigated in national courts, although there is a proposal to introduce a European Unified Patents Court. May be choices about where to sue Need to compare systems for advantages and disadvantages 5 Key considerations for choosing where to litigate Chances of winning Benefit of winning damages Injunction to stop sales or manufacturing Risk of having your patent invalidated Cost of litigating and likelihood of settlement Timing 6 3
The Main Jurisdictions : Germany, the UK and the Netherlands (and a short mention for Italy and France too) 7 The Main Jurisdictions - Germany Germany Favoured by patentees Bifurcated system means that validity and infringement are considered separately Infringement is usually considered first in Mannheim or Dusseldorf Mannheim typically 9 months to trial Dusseldorf typically 12-18 months to trial However, limited disclosure of named documents Makes pleading infringement difficult in some cases Validity is considered later by the Federal Patent Court in Munich Up to 2.5 years until hearing in Munich Harsh on validity, just slow Injunctions can be granted before validity considered Infringement court may stay proceedings or injunction if clear novelty attack A predominant likelihood that the patent will fail 4
The Main Jurisdictions - UK UK Favoured by "infringers" Validity and infringement are considered together, allowing "squeezes" No "standing" requirement to challenge validity "Declaration of non-infringement" available to create squeeze Disclosure available Product/process description Disclosure of relevant docs 2 years either side of the priority date Hard on validity of tech patents Only 2 found valid in the recent past Relatively fast The quality of UK judgments means that they are persuasive in other European jurisdictions, including Germany and Italy The Main Jurisdictions The Netherlands The Netherlands Used by patentees to block imports to Europe through Rotterdam Used by "infringers" to get quick decisions on validity Increasingly used for preliminary injunctions IP cases are always urgent 5
Other Jurisdictions - Italy Italy Used by "infringers" to launch "Italian torpedo" Potentially blocks infringement actions in DE Increasingly being considered for preliminary injunctions Contrary to reputation gained through torpedoes, can be quite quick Other Jurisdictions - France France Recently changed the rules so that all patent cases heard in Paris Slow No technically trained judges Not a common venue for multi-jurisdiction patent litigation 6
Conclusion Patentees should sue in Germany Choice of Court now more important than ever Validity of electronics patents (particularly) now being looked at more closely by infringement courts UK still fastest for revocation actions But Dutch Court also popular The Netherlands, Germany and Italy good for PI Very unlikely in UK in non-pharma case Need to keep an eye on UPC developments Hogan Lovells has offices in: Abu Dhabi Alicante Amsterdam Baltimore Beijing Berlin Brussels Budapest* Caracas Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston Jakarta* Jeddah* London Los Angeles Madrid Miami Milan Moscow Munich New York Northern Virginia Paris Philadelphia Prague Riyadh* Rome San Francisco Shanghai Silicon Valley Singapore Tokyo Ulaanbaatar Warsaw Washington DC Zagreb* "Hogan Lovells" or the "firm" is an international legal practice that includes Hogan Lovells International LLP, Hogan Lovells US LLP and their affiliated businesses. The word "partner" is used to describe a partner or member of Hogan Lovells International LLP, Hogan Lovells US LLP or any of their affiliated entities or any employee or consultant with equivalent standing. Certain individuals, who are designated as partners, but who are not members of Hogan Lovells International LLP, do not hold qualifications equivalent to members. For more information about Hogan Lovells, the partners and their qualifications, see. Where case studies are included, results achieved do not guarantee similar outcomes for other clients. Attorney Advertising. Hogan Lovells 2012. All rights reserved. *Associated offices 7