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1 -Characteristics of National Patent Litigation Systems in EU Countries

1 -Characteristics of National Patent Litigation Systems in EU Countries

Contexts in source publication

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... Since procedures differ across countries, the potential for economies of scale in duplicated proceedings is limited. 10 See Table 4.6 below for details. ...
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... Law (Article 14). As in the case of courts which had assumed jurisdiction in cases with cross-border litigation aspects, the unified Patent Court will have to apply the EPC, Community law, national law implementing Community law and national law. ...
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... the purposes of this report, it is noteworthy that the Presidency proposal includes various measures that attempt to allow for relatively low litigations costs. Among these are provisions for case management (Article 24) and the representation of parties by European Patent Attorneys who have specialised in patent litigation (Article 28). Experts may be appointed by the Court, and the Court may impose provisional or permanent injunctions. ...
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... data are summarized in Table 4.1 below. ...
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... Table 4.1 is highly informative about the heterogeneity of national patent litigation systems, its incidence estimates include both national patents and European patents, but no data on the extent of duplication. ...
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... the Courts do not provide any official statistics, judges at the courts have been collecting data 32 and an estimation of the actual number of patent cases can be made. Table 4.2 presents the distribution of cases at the Mannheim Regional Court according to subject- matter. ...
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... these assumptions the number of infringement cases can be estimated to be as displayed in Table 4.3. Note that these cases include actions relating to national patents granted by the German Patent and Trademark Office (DPMA) as well as actions relating to EPO-granted patents. ...
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... statistics are available for the number of revocation cases at the Federal Patent Court in Germany (Bundespatentgericht) (see Table 4.4). Again, the filing numbers do not distinguish between DPMA-and EPO-patents, but additional micro-data (see below) will be used to derive the distribution. ...
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... that 33%of all European patent litigation cases trigger revocation cases (while only 25% of litigation cases against DPMA granted patent do), we estimate that approximately 50% of all litigation cases in German courts are concerned with EPO-granted patents. Note that together with the "hard data" from Table 4.3, this implies that we should expect a total of about 525 infringement cases relating to European patents in Germany. We will use this implication later on in order to demonstrate that the various partial datasets can be combined to give a coherent picture. ...
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... countries with revocation and infringement procedures in two separate proceedings 34 , separate estimates were presented. Table 4.5 summarizes this information. * Note: In Germany and Poland, the first number refers to infringement, the second to revocation cases. ...
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... for Germany, some of these estimates are in contradiction to the statistics from the German Courts, summarized in Table 4.3 and Table 4.4. German patent infringement cases are underestimated in the CJA data, while revocation cases are apparently overestimated. ...
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... patent infringement cases are underestimated in the CJA data, while revocation cases are apparently overestimated. Moreover, the data for France are highly inconsistent with those of the Survey carried out under German Presidency (referred to in section 4.1) and of the Working Party on Litigation (see Table 4.6 below). The overall likelihood of litigation in the CJA data appears underestimated for some, and overestimated for other countries. ...
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... study 38 -the 2006 EPLA Impact Assessment prepared by the EPO as Secretariat of the Working party on Litigation -includes data on average costs of patent litigation in the four countries considered. Table 4.6 summarizes the data from both sources. The estimates in Table 4.6 are subject to a number of uncertainties -as the WPL study notes "they must be viewed with due circumspection." ...
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... 4.6 summarizes the data from both sources. The estimates in Table 4.6 are subject to a number of uncertainties -as the WPL study notes "they must be viewed with due circumspection." The row labelled "Total" contains the incidence-weighted averages across the four countries. ...
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... per annum, 0.125% of the patents in the stock (and at risk) will be involved in infringement litigation in Germany. It generates the best fit with the data in Table 4.3 and is therefore used to calibrate the scenarios. This parameter is maintained throughout in the remainder of the report. ...
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... is no clear evidence favoring one or the other. The data in Table 4.6 suggest that this share was as low as 50% in 2000, but subsequent developments have led to greater concentration, possibly as high as 70%. Since the recent rulings of the ECJ may have increased the need for multiple litigation again, a plausible estimate is 60%. ...
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... initial setup of scenarios is consistent with the relatively hard evidence of the number of cases in Germany. Table 4.3 implies that roughly 1,050 infringement actions would be initiated in Germany in 2008 of which 52% would concern European patents. ...
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... we assume that appeals occur not in 25% of the cases (which would reflect the overall population of cases) but in 30% of the cases. Using these parameters and the overall estimates in Table 4.6, the cost per duplicated case per party is estimated at EUR 291,000. 66 For both parties, the total private costs are then EUR 582,000 per case. ...
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... the Court will also become necessary for an increasing number of parties which may in future make more frequent use of the European patent or the Community patent. Currently (as Table 4.1 has documented), firms in the new EU Member States use European patents infrequently. As these economies grow and as their commerce gets more intertwined with other Member States, there will be increasing demand for litigation involving parties in these States. ...

Citations

... In addition, the fragmented world patent system imposes additional cost: if a patent is infringed in multiple countries, it becomes necessary, potentially, to seek advice in and sue in more than one jurisdiction. Harhoff (2009aHarhoff ( , 2009b documents evidence of duplication in Europe (that is, patent suits brought in the same dispute in different countries), and reaches an estimate of between 146 and 311 duplicated cases in 2008 in Europe (Harhoff 2009a, 40 ...
... The court shall, thus, avoid or reduce intra-community trade barriers, the high costs of parallel litigations, and inconsistent decisions or strategic litigation that may follow from a fragmented court system. 67 Harhoff (2009) estimated that the total private savings from having access to a unified patent court would range between EUR 147 to 289 million annually. A variety of challenges will mark both the transitional and longrun operation of the court, creating barriers to such goals. ...
Article
Full-text available
This study proposes a divergent expectation model for patent infringement disputes, where both litigation and settlement are driven by patent quality. Under the model, patent quality depends on both broadness and definiteness of the patent. The model predicts that technologies where the definiteness attribute can be estimated with high accuracy will have higher settlement rates. At trial, it is rather the assessment of the patent quality by the judge which decides the outcome. In its empirical section, the paper evaluates over a thousand hand-collected and hand-coded patent infringement and counterclaim decisions rendered by courts in the three largest patent granting European countries—Germany, France and the United Kingdom. The paper utilizes empirical methods to investigate whether the characteristics of the patents or the country of litigation predict the outcome of litigation. Examination of the patent characteristics is guided by the factors of our model, in that the patent quality, and underlying technology and industry are tested. The findings provide evidence of the continuing heterogeneity of the patent systems in Europe, despite the harmonization efforts. Demonstrated was the lack of importance of the characteristics of the litigated patent; rather, it was the forum to which the case was brought that was decisive. At the dawn of the Unified Patent Court, our study provides for a window into the extent of heterogeneity still prevailing and a starting point for monitoring the further development of European patent harmonization.
... Further, if Member States like Estonia can successfully lobby for more amenities such as fast track legal proceedings or lower fees for their SMEs, then it would be highly beneficial for the rapidly growing high-tech firms in these member states. 119 An outline of the pros and cons of the UP are as follows. The benefits are a reduction in costs (by some estimates upto 80 percent of administrative costs), simplified and shortened procedures and a UPC which is expected to reduce case costs, decrease contradictory decisions and increase legal certainty. ...
Article
Full-text available
Innovation is the key factor for economic growth. RDI policies pursued in a wholesome manner can have long term social significance. The true value of an invention depends upon factors such as its economic value, strategic value, cultural value and social value. Estonia and Germany share a long historical and legal connection. The German economy is strong and Germany has safeguarded it’s manufacturing, mining and construction sector through incremental innovation and focused state funding for RDI activities. Germany runs cost efficient entrepreneurship promotion programs. RDI in Estonia is dependent upon EU funding. Estonia lags behind Germany in respect of several global rankings related to technology and innovativeness. To make the Estonian economy knowledge-driven and technologically intensive, the state must focus on cultural, economic, social and strategic factors. Estonia should adopt RDI policies similar to Germany and also use the new UP regime to help its SMEs to acquire foreign patents.
... In the current research, in contrast to studies that look at domestic patent families in an American (Hegde et al. 2009) or European context (Gambardella et al. 2008;Harhoff 2009; van Zeebroeck and van Pottelsberghe 2011), we adopt a global approach and consider patent families in all three major patent systems: the United States Patent and Trademark Office, the European Patent Office, and the Japan Patent Office. This examination allows us to identify possible international patent-based indicators that enable rigorous cross-country comparisons of innovation performances at national and sectoral levels. ...
Article
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Countries can enhance endogenous innovation using multifaceted incentives for science and technology indicators. We explore country-level innovation using OECD data for research and development (R&D), patents, and exports. We deploy a dual methodology of descriptive visualization and panel regression analysis. Our results highlight industry variances in R&D spending. As a nation develops, governmental expenditure on R&D decreases, and businesses take on an increasing role to fill the gap, increasing local innovation. Our portfolio of local versus foreign resident ownership of patents highlights implications for taxation/innovation policies. Countries with high foreign ownership of patents have low tax revenues due to the lack of associated costs with, and mobility of income from, patents. We call on these countries to devise targeted policies encouraging local patent ownership. Policy makers should also recognize factors influencing high-technology exports for innovation. Lastly, we call on countries to reinstate horizontal and vertical policies, and design national innovation ecosystems that integrate disparate policies in an effort to drive economic growth through innovation.
... Further, if Member States like Estonia can successfully lobby for more amenities such as fast track legal proceedings or lower fees for their SMEs, then it would be highly beneficial for the rapidly growing high-tech firms in these member states. 119 An outline of the pros and cons of the UP are as follows. The benefits are a reduction in costs (by some estimates upto 80 percent of administrative costs), simplified and shortened procedures and a UPC which is expected to reduce case costs, decrease contradictory decisions and increase legal certainty. ...
Article
Full-text available
Innovation is the key factor for economic growth. RDI policies pursued in a wholesome manner can have long term social significance. The true value of an invention depends upon factors such as its economic value, strategic value, cultural value and social value. Estonia and Germany share a long historical and legal connection. The German economy is strong and Germany has safeguarded it's manufacturing, mining and construction sector through incremental innovation and focused state funding for RDI activities. Germany runs cost efficient entrepreneurship promotion programs. RDI in Estonia is dependent upon EU funding. Estonia lags behind Germany in respect of several global rankings related to technology and innovativeness. To make the Estonian economy knowledge-driven and technologically intensive, the state must focus on cultural , economic, social and strategic factors. Estonia should adopt RDI policies similar to Germany and also use the new UP regime to help its SMEs to acquire foreign patents.
... It currently operates on a national basis, rather than a trans-national one, with national courts possessing the right to adjudicate patent disputes within their territories.*** 1 The current fragmented system is often criticized for creating unnecessary costs and complexities for patent litigants (Harhoff 2009). ...
... For example,Harhoff (2009) relies mostly on practitioner estimates and estimates drawn from already existing literature. Our dataset is much broader than this. ...
Article
Full-text available
We compare patent litigation cases across four European jurisdictions—Germany, the UK (England and Wales), France, The Netherlands—using case-level data gathered from cases filed in the four jurisdictions during the period 2000–2008. Overall, we find substantial differences across jurisdictions in terms of caseloads—notably, courts in Germany hear by far the largest number of cases, not only in absolute terms, but also when taking macro-economic indicators into account—and we further find important cross-country variances in terms of case outcomes. Moreover, we show empirically that a considerable number of patents are litigated across multiple European jurisdictions; and further, that in the majority of these cases divergent case outcomes are reached across the different jurisdictions, suggesting that the long-suspected problem of inconsistency of decision-making in European patent litigation is in fact real. Finally, we note that the coming into force of the Unified Patent Court in Europe may, in the long term, help to alleviate this inconsistency problem.
... The grant status has been shown to be correlated with other measures of value Lanjouw et al. 1998). A potential disadvantage of grant status is the substantial length of the process, which is aggravated by the increased workload at the patent offices and by the possibility to delay the start of the examination process in certain patent offices (Harhoff 2009). Hall and Harhoff (2012) argue that patent renewals come closest to estimating the true value distribution of patents. ...
Article
Full-text available
This paper provides an in-depth analysis of the characteristics of international patent families, including their domestic component. We exploit a relatively under-studied feature of patent families, namely the number of patents covering the same invention within a given jurisdiction. Using this information, we highlight common patterns in the structure of international patent families, which reflect both the patenting strategies of innovators and the peculiarities of the different patent systems. While the literature has extensively used family size, i.e. the number of countries in which a given invention is protected, as a measure of patent value, our results suggest that the number of patent filings in the priority country within a patent family as well as the timespan between the first and last filings within a family are other insightful indicators of the value of patented innovations.
... At the beginning of the 20th century, the development of enterprises has become the biggest driving force for the rapid economic development, but the enterprises have a negative effect on the society while creating profits. With the negative impact of the production and business activities on the society, Social responsibility has also emerged, the connotation is constantly enriched, the degree of attention is also rising [1] .In recent years, the concept of corporate social responsibility is more and more people's attention, such as in the West, "Fortune" and "Forbes" are Enterprise rankings with the "corporate social responsibility" as one of the criteria [2]. ...
... Further, patent infringement and validity fall under the jurisdiction of national courts, and hence patent-holders (or parties seeking to revoke granted patents) may have to enter into litigation in multiple countries resulting in duplication of cases (Harhoff, 2009, EC, 2009 Second, like the US, there is a data exclusivity period which was also introduced in 1984 as part of the mutual recognition procedure for drug approval in the EU (prior to that, drug approval was at the national level and with varying rules), and similar to ANDA, generics can file an 'abridged' application. Initially, data exclusivity extended either to six years from initial market authorization date, or ten years, depending on the member state, and did not include the Bolar provision to allow for use of patented drug for clinical studies. ...
... Mejer and van Pottelsberghe (2009) also provide examples with costs as high as €2 to €10 Mio EUR, but these are exceptional and not representative. See Harhoff (2009) for estimates of litigation costs in other European countries. 6 opposition makes it likely that the overall effect of opposition is welfare-increasing. ...
Article
Postgrant validity challenges at patent offices rely on the private initiative of third parties to correct mistakes made by patent offices. We hypothesize that incentives to bring postgrant validity challenges are reduced when many firms benefit from revocation of a patent and when firms are caught up in patent thickets. Using data on opposition to patents at the European Patent Office we show that opposition decreases in fields in which many others profit from patent revocations. Moreover, in fields with a large number of mutually blocking patents, the incidence of opposition is sharply reduced, particularly among large firms and firms that are caught up directly in patent thickets. These findings indicate that postgrant patent review may not constitute an effective correction device for erroneous patent grants in technologies affected by either patent thickets or highly dispersed patent ownership. This paper was accepted by Lee Fleming, entrepreneurship and innovation.