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Uniform interpretation of european patent law with a special view on the creation of a common patent court

By SL Luginbühl


The European Patent Convention (EPC) provides for a common application and examination procedure for European patents. Therefore, European patents are granted on the basis of uniform European law which is applied and interpreted by the EPO, as well as by a great number of national judges and members of other authorities who are bound by national case law. The fact that the EPC and corresponding national patent law is "uniform law" requires that it is construed in an international spirit based on its ratio and with a view to create cross-border legal uniformity. This is not least underscored by the fact that the extent of protection conferred by a European patent should be determined according to Article 69 EPC and the Protocol on the Interpretation of Article 69 EPC and that a large part of national patent laws of EPC Contracting states have been unified with the Strasbourg Convention on the Unification of Certain Points of Substantive Law on Patents for Invention and the 1975 Community Patent Convention - as agreed in a resolution on the adjustment of national patent law - in order to achieve legal uniformity. However, diverging decisions with regard to the corresponding parts of a European patent remain an issue to date. Furthermore, under current law the patent holder must initiate several parallel infringement actions, based on the same European patent and directed against the same alleged infringer before the national courts in the states where the infringing acts have taken place. This situation gives rise to many difficulties for the parties and has several undesirable effects which weaken the patent system in Europe. The PhD thesis deals with different legal measures which would promote the uniform interpretation of European patent law and which would help to ease the difficulties related to multiple litigation. This includes in particular, - the creation of specialised courts at national level and the influence of cross-border forum shopping in this regard, including the problems and possible solutions related to forum shopping, - the judicial cooperation among judges, including the exchange of judges and scientific support from scholars and practitioners, - the establishment of an international referral body, - Alternative Dispute Resolution (Arbitration, Mediation, and other instruments), - harmonisation of the court proceedings and the substantive patent law, - cross-border injunctions, or - the establishment of a common court of appeal. The author concludes that specialisation at the level of first instance courts in combination with several other of the above mentioned measures could ensure a uniform interpretation of European patent law. Finally, the author outlines past and current attempts for the establishment of a common patent court in Europe with a clear focus on the proposed court architecture and the elaboration of specific conditions regarding the organisation of the court in order to safeguard a uniform interpretation of European patent law and to avoid multiple litigation. The Ph.D. thesis was completed under the supervision of Prof. dr. Jan J. Brinkhof and Prof. dr. F. Willem Grosheide

Publisher: Utrecht University
Year: 2009
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