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The fate of the recent Johnson & Johnson contact lens action shows why the pace of movement towards a centralised EU patent system is quickening, says Douglas Campbell
Pharmaceutical company Johnson & Johnson (J&J) has sued Novartis all over Europe for patent infringement over contact lenses, getting different results in different countries. However, the fact that it obtained divergent decisions is not the fundamental problem - it’s merely a symptom.
Any legal practitioner will confirm that different judges in the same country are perfectly capable of coming to varying decisions on the same facts. The real problem is the lack of a single patent tribunal covering the whole of Europe.
The question of which countries would be allowed to hear patent cases, along with the issue of translation, is one of the major reasons why there is currently no centralised system. The three big patent jurisdictions are, and always have been, the UK, the Netherlands and Germany, with France following some way behind. The courts of these four countries are bound to have jurisdiction in any centralised system worth its salt.
Other countries fall into a spectrum whereby some, such as the Nordic countries, have considerable experience of patent litigation and others, like the former Communist states, do not. There is huge political pressure from the EU for them all to be allowed to hear pan-European patent cases. There is rather less enthusiasm from the big patent litigators to be forced into these other countries. The one thing any litigator wants is consistency, and they do not want to pay for someone else’s legal education.
Three into one
Each of the three major jurisdictions has its pros and cons. The UK is internationally respected for the quality of its decisions. This is so even though litigants do not often realise that this reputation is largely due to specialist IP judges, and they are just as likely to get a non-specialist Chancery judge if their case is technically straightforward. The UK’s legal system is also the most culturally familiar to US patentees. However, it is regarded as the most expensive.
Germany has separate courts for infringement and validity. The infringement courts such as Mannheim and Düsseldorf grant injunctions relatively quickly, and do not consider validity unless the patent is plainly bad - for example, if it lacks novelty over the prior art.
The validity court moves more slowly. When an injunction is granted the defendant has the choice of giving in or fighting on for several more years in the validity court to get the patent revoked. Most defendants give in, making Germany attractive for claimants.
Dutch courts try validity and infringement together, like the UK courts, but do so much more quickly and cheaply than in the UK. There is no disclosure or cross-examination, and trials are often completed in a day or two.
However, the Dutch economy is small and patentees are rarely satisfied with relief limited to the Netherlands. Partly in response to this, the Dutch courts unilaterally introduced pan-European injunctions in the late 1990s, but (with the exception of one aberrant French decision) no other European courts enforced these. The Dutch courts themselves subsequently limited the scope of their pan-European jurisdiction to companies based in the Netherlands.
If the status quo were to remain under a unified system, J&J would probably choose either Germany or the Netherlands ahead of the UK.
Questions of procedure
Another issue is whether countries should apply their existing procedural laws or harmonise these too. It has long been recognised that existing national procedures cannot possibly be maintained under a common European patent system.
Apart from defeating the purpose of having a unified system, if there were no harmonisation patent litigation would tend to migrate to whichever country is considered to have the most patentee-friendly procedures. This is why national judges from nearly all the European Patent Convention countries met some years ago in Venice to establish a common set of procedures for use when the single patent system comes into effect.
There are two main points to notice about the Venice rules. First, they are designed to ensure that both infringement and validity can be tried in one or two days, without disclosure or cross-examination - in other words, the Dutch model. Second, they are similar to the rules of procedure which were introduced into the UK Patents County Court in October 2010 as part of unrelated reforms.
If the change were made tomorrow J&J would probably still choose either Germany or the Netherlands, primarily on grounds of cost. However, the UK courts would soon build up some experience of trying patent cases in one or two days. At this point, the UK would become a viable option and one which J&J, as a US company, would be likely to prefer. After a transition period, it seems likely that the pattern would be much the same as it is now, but much cheaper for all concerned.
There are many problems yet to be solved. Should the European Court of Justice be the ultimate European court on patent matters, given its controversial record in relation to trademarks? What is to be done about translations? And what can be done to stop defendants forum-shopping in obscure jurisdictions?
Despite these questions, one thing is for sure - the momentum is becoming unstoppable.
Douglas Campbell is a barrister at Three New Square