Obtaining evidence of infringement: preservation and seizure

By Dr Dietrich Kamlah, Siv-huor Ou and Paul England

If a defendant is suspected of infringing a patent, it is of course crucial to be able to prove this in order to obtain relief. However, the measures available to obtain evidence have traditionally varied from jurisdiction to jurisdiction in Europe. In 2004, in order to try to harmonise these, the EU Directive 2004/48/EU on the Enforcement of Intellectual Property Rights Act (the Enforcement Directive) came into force. According to the recitals on the Enforcement Directive, its objective was to ‘approximate legislative systems so as to ensure a high, equivalent and homogeneous level of protection in the internal market’, i.e. across the EU. However, despite the harmonising aim of the directive, there remain significant disparities in evidence-gathering procedures in the key patent jurisdictions in the EU. Now, with the signing of the agreement on a Unified Patent Court (UPC) on 19 February 2013 and (at the time of writing) a 15th draft of the Rules of Procedure (Draft Rules) available, there is the prospect of new approaches to obtaining evidence applicable across all the UPC contracting states.

This is the second of two articles focusing on the measures to produce and preserve evidence in three major patent jurisdictions — Germany, France and England and Wales — and compares them with their counterparts in the UPC agreement and the Draft Rules…

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