Different ‘Rules of the Game’ – Impact of National Court Systems on Patent Litigation in the EU and the Need for New Perspectives

Abstract

“It seems that the jurisdiction in which a case is litigated has a significant impact on its outcome,” professor Lemley has addressed the issue of forum shopping in the US and internationally, and claims that the venue of litigation defines the case outcome. Indeed, patent litigation is highly diverse especially in Europe. This is mainly derived from the following reasons – more globalised Innovation and R&D results in increased cross-border enforcement with some inherent challenges. In addition, the existence of different sets of rules and different national courts that hear the patent infringement and invalidity cases in each European state makes the litigation 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 infringers, depending on the litigation venue, face legal uncertainties and encounter different outcomes even when the same patented invention is concerned. In light of these differences in national systems and judicial 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 mechanisms for IPR enforcement or to improve already existing systems. The article, looking at the specific examples 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 institutional and methodological level for European judiciary aiming at elimination of fragmented patent litigation and fostering an innovation eco-system in the EU.