Is cross-border relief in European patent litigation at an end?

Abstract

The ECJ decisions in GAT v LuK and Roche v Primus appear to have prohibited cross-border relief, bringing the Dutch and the German patents courts (which were willing to grant such relief in certain circumstances) in line with the English Patents Court (which has always refused to grant such relief). However, the decisions still enable the Dutch and German patents courts to continue to grant cross-border relief in certain circumstances. Whether they will do so remains to be seen. Before the ECJ decisions, the Dutch Supreme Court considered that issues of infringement and validity of a European patent—which by virtue of the European Patent Convention (‘EPC’) is construed (at least in theory) in the same way across EPC Member States1— are separable. Accordingly Article 22(4) of the Brussels Regulation, which expressly reserves jurisdiction regarding patent validity to the courts of the country where the patent is registered, does not prevent a national court from determining the issue of infringement of a European patent for other EU Member States and, in appropriate circumstances, granting cross-border relief.