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Patents in Europe 2010/2011
Welcome
Welcome to the fourth edition of Patents in Europe: Helping business compete in the
global economy. Produced in partnership with
the European Patent Office (EPO), Patents in
Europe has become an indispensable guide
for all those who use or have an interest in the
European patent system.
Features
Bringing the European patent grant process into focus
The European Patent Office’s
Raising the Bar initiative is designed
to ensure that the office continues
to issue high-quality patents
One step closer to European unity
After almost a decade of failed
negotiations, 2009 saw EU
member states commit to the
creation of an EU patent and single
patent court. A panel of leading IP
professionals discuss their hopes
and expectations for a unified
European patent system
The effects of the EPC
The second round of amendments
to the European Patent Convention
Implementing Regulations is imminent
Articles
Belgium
A patent holder has several options to
enforce its rights in Belgium. It can initiate
substantive proceedings to obtain damages,
an injunction and other measures available
under the Patent Act (28th March 1984) (see
question 16).
Cyprus
The most effective way for a European
patent holder to enforce its rights in Cyprus
is to file a court application for a freezing
order until its case is heard by the courts.
Denmark
fast and effective way of stopping infringing
acts. Proceedings to obtain a preliminary
injunction can be initiated in the Bailiff’s
Court and a preliminary injunction will be
issued if the patentee can prove that the
requested injunction relates to acts covered
by its patent and it is probable that
infringement will take place.
Finland
Finland has been a member of the European
Patent Convention since 1996. European
patents are treated as national patents once
they have been granted and have come into
effect in Finland. Therefore, European patent
holders have the same options for enforcing
their rights in Finland as national patent
holders.
France
The enforcement of patent rights in France
essentially involves civil proceedings in the
courts, in particular the Tribunal de Grande
Instance de Paris (the Paris court of first
instance), which was recently given
exclusive subject matter and territorial
jurisdiction over all new patent litigation.
Germany
A European patent designating Germany
affords the same rights as a German patent.
In particular, the holder of a European
patent can:
• Send a cease and desist letter.
• Apply for a preliminary injunction or a
decision on the merits of the patent.
• Obtain evidence of infringement (but
only to a certain extent).
• Obtain border seizure.
Greece
A European patent designating Greece enjoys
the same scope of protection as is afforded to
a Greek patent, provided that it has been
validated in Greece (ie, a certified Greek
translation of the patent has been filed with
the Greek Industrial Property Organisation
within three months of publication of the
grant of the European patent).
Ireland
Enforcement of a European patent in Ireland
is available only by petition to the High
Court in civil proceedings. Infringement
proceedings are handled by the Chancery
Division of the High Court. A special
section of the High Court, known as the
Commercial Court, has powers to hear and
fast-track IP disputes.
Italy
In urgent cases the following preliminary
remedies are available to the patent owner:
• Seizure – an order to seize products,
tools and production plants, books of
account and invoices and advertising
materials.
Description – an order to inspect
products, production plants, books of
account, advertising and any associated
documents in order to collect
documentary evidence of the
infringement and the extent thereof.
• Injunction – an order to cease the
manufacture, trade and use of the
infringing items or to remove the
infringing items from the marketplace.
Luxembourg
Litigation before a civil court is the most
effective way for a patent holder to enforce
its rights, since a court decision is
permanent and enforceable against a
previous authoritative order.
Netherlands
The most effective way to enforce IP rights in
the Netherlands is by summary proceedings
– that is, a relatively short procedure which
takes from three to six months. However,
since infringement cases generally also
encompass nullity arguments, summary
proceedings are usually followed by
proceedings on the merits, which take
approximately two years.
Norway
The most effective way to enforce a patent
in Norway is to apply for an interlocutory
injunction order. This approach is the
quickest way to stop or prevent
infringement in the short term. If
circumstances warrant an ex parte ruling, an
injunction can be obtained within days;
otherwise, it takes between three and eight
weeks. Interlocutory injunctions can be
appealed, but are effective immediately.
2. What level of expertise can a patent
Poland
The holder of a European patent which is
effective in Poland enjoys basically the same
rights as the holder of a patent issued by
the Polish Patent Office (PPO). In case of
infringement, a lawsuit may be brought
against an alleged infringer before a civil
court.
Slovenia
Depending on the characteristics of the
case, a patent holder may decide to use one
or several of the following:
• A civil lawsuit.
• An application for a preliminary
injunction.
• A criminal complaint.
• Customs measures.
Spain
In Spain, European patent holders may bring
civil court actions against alleged infringers
through the relevant legal proceedings. In
exceptional circumstances and where a
crime has been committed, a criminal
action may be brought.
Switzerland
The patent holder can send a warning letter
and seek an out-of-court settlement with
the alleged infringer. A successful warning
letter is the most effective way to enforce
rights, since it is subject to no formalities
and costs little. If no solution can be found
in this way or through arbitration or
mediation (to which the alleged infringer
must agree), the patent holder has no
option other than to enforce its patent
through a court action.
United Kingdom
Patent infringement claims can be brought in
the Patents Court (a division of the High
Court) or the Patents County Court. They
can also be brought before the Intellectual
Property Office by agreement of both parties,
but injunctions are not available. The Patents
County Court is suitable for lower-value
patent disputes, but the Patents Court is
generally recommended for most disputes.
