Part of any smart patent litigation strategy is to seek the right venue. This is true for Europe as well as for the US. Among practitioners it is known that Texas is a preferred venue for patent litigation in the US, as the judges are assumed to be patentee friendly and, important, not inclined to immediately bow to defendant’s strategies to unduly complicate and manipulate litigation by throwing in  litigation tactics with the (sole) intention to complicate the litigation, so as to gain time and to force the plaintiff...

For several years now, patent holders and trademark owners have successfully been using European Regulation 1383/2003 to ensure that customs authorities in the EU detain or suspend the release of goods suspected of infringing their IP rights. These IP right owners take the view that goods in transit must be considered infringing goods under Regulation 1383/2003 and are thus subject to customs detention and/or subsequent seizure by an IP right owner under national IP laws. These IP right owners base their reasoning on the so-called...

Is “independent invention” a cure against trolls in that it can be argued that infringement cannot be established in case of an “independent invention”? No it is not. A  lot of confusion, misunderstandings, half-truths, nonsensical quasi-lawerly talk exists around the term “independent invention“. The term is often “spittered” about as means against patent infringement actions by NPEs or patent trolls, but has no basis in patent law and lacks a common understanding and agreement on what it means...

MAybe it is time for some intellectual reflection on the current stage of patent litigation in Europe. Those reflections come from a idiot savant, as we are out of patent litigation in Europe for some time now and much what is being brought up may also have to do with being out of the litigation loop and hence may have colored our view on what’s going on in Europe at this time. For years patent litigation in Europe was seen by many as convoluted, cumbersome and fragmentized. Rightfully so. The patent practitioners, in response,...

Recently the European Commission requested the Council to authorize the start of negotiations for the conclusion of an Agreement Creating a Unified Patent Litigation System. Old wine in a new bottle? EPLA (European Patent Law Agreement) intended to address the shortcomings of the present system, where a patent infringement and invalidity claim must be filed in individual European countries.  EPLA originated in the EPO and a few active members of the EPC, patent litigators and judges. Now the EU Commission produces its “Recommendation”,...

I am sure you remember the good old days when Dutch patent practitioners introduced the “pan European injunctions”. Based on the idea that a European patent granted in Munich according to uniform (and unified) principles of patentability should enjoy pan-European protection by a single strike. The Dutch, not known for their shyness when it comes to introducing creative policies, introduced the idea of a “cross border” injunction, of course, to be rendered by Dutch courts. This was the early 90’s. The Dutch Supreme Court...

You are a European institution, the European Central Bank, and you seek the invalidation of what has been granted as a valid right by another European institution, the European Patent Office (EPO). The last weeks we got a taste of how The Great Patent Divide, the most un-European experience in patent law, has turned into Europe’s Patent Demise. …

As blogger just learned, on Christmas Eve, one of Europe’s great patent judges, Lord Justice Pumfrey, passed away quite unexpectedly at the much too young an age of 56. He was the author of many judgements that changed the patent landscape in the last years, not just for the UK but for many European patent professionals, who followed his learnings closely. He was admired and respected and we surely feel deeply sorry that we have to miss a great judge.see also Times Online, Jan. 3

It can be no coincidence that both in the US as well as in Europe “patent exhaustion” has been brought in the legal limelight. Last week in the US the US Supreme Court allowed certiorari in a case Quanta Computer Inc. v. LG Electronics Inc., 06-937.At the same time in Europe Nokia alleges in German (Mannheim) and Dutch (The Hague) courts that Qualcomm’s patent(s) are “exhausted” in respect of chipsets supplied by Texas Instruments which have been sold on the European Union market with a Qualcomm license. If Nokia’s...

On 24th September, the European Union submitted its instrument of accession to the Geneva Act of the Hague Agreement to the World Intellectual Property Organization. The Geneva Act of the Hague Agreement establishes a system for the international registration of industrial designs. After joining it, economic actors will have the possibility to use a single application to obtain protection of a design not only throughout the EU with the Community Design, but also in the countries that are members of the Geneva Act. This will simplify...

Biotech is R&D intensive, so research tools are a crucial element in this industry. It is not surprising that inventors who have found a new tool to do the expensive research are looking for ways to expand the reach of their tool invention. One way of doing so is to claim that the invention (the research tool, that is the composition or method to do experiments) is not only useful in conducting those experiments, but also in establishing what the result of this research will be, even if one does not know the outcome of this...

Twenty six patent judges from all over Europe gathered in San Servolo, Italy, for the second time to discuss and decide on rules and procedures for the EPLA court, the first centralized European Patent Court. After meeting for a week all 26 judges agreed and signed a Resolution (“Second Venice Resolution“), approving new rules how to conduct the procedures in this newly to be established EU patent court. The Rules deal with all aspects of patent litigation, from how to start the litigation to case management, the...

When on November 2, 2006 the US company Garmin – maker of GPS consumer products – and their direct competitor, the successful Dutch company TomTom, received its favorable judgment against TomTom in an IP matter, the District Court The Hague also awarded Garmin with a unprecedented judgment in court fees: €37,000 (US$ 47,000), to be paid by TomTom.  With regard costs, IP litigation used to be almost “risk free” in Europe and especially Netherlands, as the court costs, awarded to the winning party was nominal,...

In Europe we had our time when the Netherlands courts, soon followed by courts in Germany, rendered cross border relief under a European Patent in most of the 90’s. This effort to create a truly European wide enforcement of patents after a uniformed granting procedure, was stalled after the ECJ’s decisions in GAT vs. Luk and Primus et al vs. Roche.  In the US extra territoriality is now also at the heart of a judicial review. On October 27, the US Supreme Court granted certiorari (accepted to hear a case) in the Microsoft...

Yesterday, the European Court of First Instance (CFI) delivered its long-awaited judgement in the case GSK vs EU Commission relating to a Spanish parallel import case. GSK’s dual pricing scheme introduced in Spain did not find explicit blessing by the CFI but the European Commission’s decision was quashed in some key respects. The Commission will have to do a better job when re-analysing GSK’s 1998 “General Sales Conditions” introducing one price for drugs resold subject to price controls in Spain and a (higher) price...

In an earlier blog, I reported on the European Court of Justice judgements in GAT/Luk and Roche/Primus. Both decisions of the ECJ will also be published in Dutch in the 5th issue of the Dutch Intellectual Property magazine “IER” (Intellectuele Eigendom & Reclamerecht), published by Kluwer Legal Publishers , followed by an explanatory “Note” of Severin de Wit. Click here for the full text of the Note.

On 13 July 2006, the long awaited decisions of the European Court of Justice (ECJ) were given in the cases of GAT v LuK and Roche v Primus. To the disappointment of some, the ECJ appears to have prohibited cross-border relief, bringing the Dutch and the German patents courts (which were willing to grant such relief in certain circumstances) in line with the English patents court (which has always refused to grant such relief). However, the decisions are such that both the Dutch and German patents courts may continue to grant...

Last Friday, May 5, 2006, the ECJ gave its judgement in Massachusetts Institute of Technology (C-431/04) concerning SPC (supplementary protection certificates) and the meaning of “combination of active ingredients” in article 1(b) of EU Regulation 1768/92. The ECJ did not follow the Opinion of Advocate-General Léger of on 24 November 2005. The Issue The drug in question had two elements: an active ingredient, carmustine, and a polymeric, biodegradable excipient, polifeprosan. The national (German) courts held that...