Abstract
We compare patent litigation cases across four European jurisdictions—Germany, the UK (England and Wales), France, The Netherlands—using case-level data gathered from cases filed in the four jurisdictions during the period 2000–2008. Overall, we find substantial differences across jurisdictions in terms of caseloads—notably, courts in Germany hear by far the largest number of cases, not only in absolute terms, but also when taking macro-economic indicators into account—and we further find important cross-country variances in terms of case outcomes. Moreover, we show empirically that a considerable number of patents are litigated across multiple European jurisdictions; and further, that in the majority of these cases divergent case outcomes are reached across the different jurisdictions, suggesting that the long-suspected problem of inconsistency of decision-making in European patent litigation is in fact real. Finally, we note that the coming into force of the Unified Patent Court in Europe may, in the long term, help to alleviate this inconsistency problem.
Highlights
At present, the European patent system is undergoing a series of major reforms with the aim of ‘‘unifying’’ the patent litigation system
Our data collection and analysis can be differentiated from the Graham and van Zeebroeck (GVZ) paper in several ways: first, our data for Germany and the UK is derived from direct case records, available from paper records or online, whereas GVZ rely on a database produced by an IP analysis company (GVZ’s data cover only about 50 % of the German cases and the GVZ article lacks data on settlements); second, whereas GVZ’s analysis is performed at the judgment level, our study is based on data aggregated at the case level; this article offers an important cross-check on the accuracy of the results reported in GVZ
Once the analysis at the individual decision level was completed, we grouped all court records into unique cases. This grouping is done in several steps: (1) Darts-IP links every decision to its antecedent, forming a chain of decisions relating to the same case (2) we use case references attached to each decision to identify further decisions belonging to the same case that were not linked by Darts-IP, (3) we look for all dockets that have at least 2 parties and 1 patent family in common and manually check whether these belong to the same action, in which case we merge them into a single case record
Summary
The European patent system is undergoing a series of major reforms with the aim of ‘‘unifying’’ (or rather ‘‘defragmenting’’) the patent litigation system. An important argument put forward by the proponents of the UPC is that the existence of the new court will cut down on the duplication of court cases across different European jurisdictions; and in doing so, The validity of a patent may be challenged before the Central division or a local/regional division, whereas infringement claims will be filed at local/regional divisions (unless the defendant is not an EU resident). We present evidence based on a newly gathered dataset of empirical patent case data—a comprehensive dataset which enables us to undertake a direct comparison between patent litigation in the four major patent litigation systems in Europe: Germany, the UK (England and Wales), France, and The Netherlands for the period 2000–2008.7 Importantly, our study differs from, and improves upon, the existing available data and literature, which generally is based on much more limited data samples than we provide in this article.. This section explains briefly the main characteristics of the four enforcement systems and highlights some of the substantive and procedural differences that exist between the jurisdictions of Germany, the UK, France and The Netherlands
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