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 xiii xv xvi xxi General introduction 1 PART 1 NEW WAYS TO ACHIEVE A UNIFORM INTERPRETATION OF EUROPEAN PATENT LAW AND POSSIBLE SOLUTIONS TO THE PROBLEMS RELATED TO THEM I IV. V. VI. V ilised national patent courts Introduction A. Potential risks of specialised courts B. Dealing with those risks C. Demand for specialised patent courts France Germany 1. Introduction 2. Split proceedings ('bifurcation') The Netherlands United Kingdom Reasons for success of the German patent litigation system Conclusion 15 15 17 17 19 22 22 24 25 25 25 27 29 30 30 31 32 32 38 39 41
viii European patent law 2. Forum shopping related to patent litigation in Europe 42 I. Introduction 42 A. Relevant provisions in regard to cross-border forum shopping 43 Reasons for forum shopping 45 A. Familiarity with the legal system 47 B. Speed of the courts and quality of judgments 47 C. Lis pendens rules 48 1. The European rules and their general impact on patent litigation in Europe 48 2. The approach in the draft Hague Jurisdiction Convention 53 3. The problem of'torpedoes' 54 D. Provisional and protective measures 63 E. Procedural differences and court practices 64 1. The kort geding procedure 66 F. Damages 70 G. Interpretation of European patent law and other substantive law 72 H. Costs 73 I Possible and real problems related to cross-border forum shopping 74 A. Limited number of experienced courts and abuse of the situation 74 B. High litigation costs 75 C. Forum non conveniens and anti-suit injunctions 75 1. Forum non conveniens 75 2. Anti-suit injunctions 77 D. Inefficiency 81 E. Inconsistency of choice of law rules and the problem of applying law taking effect abroad 81 1. The situation in Europe concerning choice of law rules 81 2. Applying law taking effect in another state 84 F. Impact on the sovereignty of a state 87 1. Cross-border injunctions 89 2. Policy-making by applying law taking effect abroad and the problem of recognition 108 IV. Forum shopping and the CJEU 111 A. The CJEU's position 111 B. Conclusion of the CJEU jurisprudence 114
Contents ix V. Conclusions concerning cross-border forum shopping in Europe 115 A. General 115 B. Possible solution to the problems related to crossborder forum shopping 118 1. Limitation of the number of courts 118 2. Detailed check of a court's own jurisdiction 119 3. Danger of negative competence conflicts? 121 4. Principles of judicial cooperation between courts 122 5. Conclusion 123 3. Conclusion in regard to the unification of interpretation and avoiding multiple litigation by way of specialised national courts and forum shopping 125 4. Combination of concentration of litigation at the national level and other measures 128 I. Judicial cooperation 128 A. Cooperation among judges 128 1. Introduction 128 2. The Patent Judges' Symposia and their impact on a uniform interpretation 129 3. Exchanges between national judges, as well as between national judges and members of the EPO Boards of Appeal 131 B. Academic analysis: the role of universities and practitioners 133 C. Conclusions with regard to unification of the interpretation of European patent law by way of judicial cooperation 135 Creation of 'best practices' as regards the interpretation of European patent law and common rules of interpretation 137 I Bodies giving opinions on European patent law 139 A. Introduction 139 1. Key aspects with regard to a uniform interpretation 140 B. The EPO Enlarged Board of Appeal 142 1. The EPO Enlarged Board of Appeal as a referral body for national authorities 144 2. Unification by constituting the EPO Enlarged Board of Appeal from national judges 144
x European patent law IV. 3. The EPO Enlarged Board of Appeal as basis for a European patent court of appeal 146 C. The Facultative Advisory Council 146 1. History and background 146 2. Proposed principal regulations of the Facultative Advisory Council 149 3. Can the Facultative Advisory Council unify the interpretation? 151 D. Conclusion with regard to unification of interpretation amongst bodies giving opinions on law 155 Harmonisation of court proceedings and substantive patent law 156 A. Introduction 156 B. Common rules regarding civil procedure at the European level 157 1. Introduction 157 2. The patchwork approach of the European Union 161 3. Uniform law concerning patent litigation 165 C. Crucial points of procedure with an effect on the interpretation of European patent law 167 1. Provisional measures 167 2. Evidence 169 D. Conclusion with regard to a unification of the interpretation of European patent law by way of a harmonisation of procedural law 170 E. Harmonisation of substantive patent law 172 V. Cross-border injunctions 176 VI. Common court of appeal 177 V National courts acting as European courts 179 VI Conclusion 181 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 185 I. History and development 185 A. The first phase 185 B. The second phase 187 C. The third phase 189
Contents xi I IV. Structural and institutional provisions in the draft European Patent Litigation Agreement and the draft Statute of the European Patent Court 192 A. The legal basis for the European Patent Litigation Agreement in the EPC 192 B. The European Patent Judiciary 193 1. Organs of the European Patent Judiciary 195 C. Judges 222 1. Requirements for office 222 2. Independence and impartiality of judges with a focus on the proposed possible double mandates 224 3. Legally and technically qualified judges 230 4. Appointment of the judges 233 5. End of term and removal from office 236 6. 'Assessor' 236 7. Assignment of the judges to the different divisions of the Court of First Instance 237 D. Judicial panels 239 Does the structure of the European Patent Judiciary fulfil the obligations under general international treaties? 242 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 242 B. TRIPs Agreement 245 C. Further rights in the Charter of Fundamental Rights of the European Union 246 1. History and development of the Charter of Fundamental Rights of the European Union 246 2. Impact on the structure of the European Patent Court 247 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 248 6. The patent court for Europe based on the proposals for an Agreement on the European and EU Patents Court (EEL PC) 252 I. History and development 252 A. The first phase 252 B. The second phase 256
xii European patent law C. The third phase 261 D. The fourth phase 262 Structural and institutional provisions in the draft Agreement on the European and EU Patents Court (EEUPCA) and in the draft Statute of the EEUPC 265 A. Introduction 265 B. Legal basis 268 C. Detailed proposals 269 1. General provisions 269 2. The committees 271 3. The Court of First Instance 272 4. The Court of Appeal and the Role of the CJEU 274 5. The Presidents of the Court of First Instance and the Court of Appeal 275 6. The Presidium and Registry 275 7. Judges 276 8. Judicial panels 279 7. Summary and general conclusions 283 Bibliography 290 Index 323