科法所演講系列第一彈:歐洲專利訴訟實務現況

主講人:Mr. Jerome Collin

 

Jerome collin

 

                                                                                                 彭筱芊

                                                                               碩士班2009級科技組

 

We were very honored to have European patent attorney Jerome Collin come last week and speak to us about the European patent environment and patent litigation. The room was full of professionals and I was very excited to have the chance to attend this lecture. Everyone was eager to learn about the European patent system and the one-hour lecture seemed to go by too quickly.

          Despite the fact that most of us know more or less about the collection of distinct national patent offices and courts in Europe as well as the new EPO, few of us have actually come into contact with European litigation, or even European patent attorneys for a matter of fact! Therefore, having Mr. Collin talking about patent obtention, patent enforcement, and litigation strategies in European countries was really fascinating.

          A couple of things are very unique to the European system. According to the Brussels Convention and Regulations, “validity remains a purely national issue”. Therefore, the validity of the same patent can be verified or denied by different country courts. Each country decides for itself whether a patent is valid or not. However, the circumstances for issues regarding infringement are completely different. These issues are subject to international provisions, and have become what is now known as an interesting proceeding called “lis pendens”, which means that in a proceedings involving the same cause of action brought to different national courts, any court other than the court first seized shall keep its own motion stay its proceedings, and may decline jurisdiction in favor of that first court. Therefore, parties can use either the “spider in the web” or “torpedo”. Since other courts must stay while the first court where the action was brought is thought to have jurisdiction over the matter. Either the defendant or the plaintiff may “seize jurisdiction” and file an action of infringement (or declaration of non-infringement) in a court that is more beneficial.

For instance, patent holders will use “spider in the web” to attack its infringers quickly by selecting a court that is patent friendly and. fast in making decisions, allowing lis pendens to expand that verdict quickly across the nations. On the other hand, potential infringers will seize jurisdictions and file in a slow court, creating maximum length of time for infringement of the product. Obviously it is not so simple in the real world as that, but this is the greater picture so far. There are limitations and exceptions (and exceptions to the exceptions), but these can be discussed next time J

          Another unique attribute to the European patent system is called Seizure, which was originally only unique to France, but became popular in other nations as well (it is even being incorporated to the soon-to-be-true central European Patent Court!). Similar to Discover in the United States, seizure is an order made by the Courts for the patent holder, allowing patent holder lead by a bailiff (European police) to look at and take note of almost everything at the site of the seizure. Things cannot be taken away, but they can be described in detail and

investigated, and importantly, used as evidence during trial. Of course, seizure is not only a powerful tool, but a very delicate one as well. The patent holder, along with the attorney, plans weeks for this single seizure, making sure that nothing goes wrong. If a single rule on the order is not met or is crossed, the whole seizure may become invalid. There are so many interesting questions left unanswered about this evolutionary tool, and I’ll be sure to look up more about it! This is very vital to the survival of Taiwan companies at tradeshows in Europe if we want to avoid exposing everything upon seizure!

          We see that Europe started out as an inhomogeneous patent environment, with separate systems of patent obtention, patent enforcement, yet now, with EPO and the possibility of a single European Patent Office, the patent system is much more simplified and unified. Harmonization work is in progress, but saying if and when it will produce effects is not possible.

          Mr. Jerome Collin’s lecture was concise and informal. He shared willingly with his audience about litigation strategies and his own court experience. I can’t wait until the next guest speaker that ITL invites!!

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