Common issues of direct and indirect infringement in Europe and the UPC

Abstract

... Although not obliged to do so, European judges frequently take notice of each others’ judgments in proceedings concerning the same patent and the same cause of action. Where it is possible, they will be consistent with the decisions of other European courts. Jacob LJ reaffirmed this approach in the Court of Appeal in Grimme Maschinenfabrik GmbH & Co KG v Derek Scott (t/a Scotts Potato Machinery):1 Broadly we think the principle in our courts – and indeed that in the courts of other member states – should be to try to follow the reasoning of an important decision in another country. Only if the court of one state is convinced that the reasoning of a court in another member state is erroneous should it depart from a point that has been authoritatively decided there. Increasingly that has become the practice in a number of countries, particularly in the important patent countries of France, Germany, Holland and England and Wales. Nowadays we refer to each other’s decisions with a frequency which would have been hardly imaginable even twenty years ago. And we do try to be consistent where possible.