Economic Implications
of a Fragmented Patent System in Europe
Malwina Mejer and
Bruno van Pottelsberghe de la Potterie
Economic Implications of A fragmented patent system in Europe
Workshop on regulatory reform: Venice July 18-19
Malwina Mejer and Bruno van Pottelsberghe de la Potterie
July 2008
FIRST DRAFT - comments welcome
This is a very preliminary version of the paper, please do not quote or diffuse without
prior acceptance by the authors
Abstract
The European patent system is known to be highly fragmented: once a patent is centrally
granted by the European Patent Office (EPO) it must be validated and enforced in the desired
EPC (European Patent Convention) Member States. The main criticism of this system is that
it is prohibitively costly, due to cumulated translation costs, national validation fees and
national yearly renewal fees. This paper argues that the consequences of this ‘fragmentation’
are actually much more dramatic than the mere cost of prosecuting a patent before national
patent offices would suggest. Cost simulations and case studies provide evidence suggesting
that heterogeneous national litigation expenses and practices induce i) a high level of
uncertainty; ii) a more intense managerial complexity; and iii) irrational discrepancies within
the European market.
Outline of the paper:
1. A fragmented system
2. Cost consequences
3. Litigation costs and institutional setting
4. Legal uncertainty: 3 case studies
5. Concluding remarks
1. A fragmented system
The European patent system has been put in place in 1978, when height European countries
ratified the European Patent Convention (EPC). Under the EPC, the process of granting a
patent has been centrally performed by the EPO (European Patent Office). Nowadays the
number of Member States is of 34, witnessing the success of the system and a wide
recognition of the usefulness of the EPO. However, the EPC does not provide a uniform
system to enforce European patents once they are granted. A European patent takes effect as
national patents in each state where it is validated and enforced after its grant by the EPO. In
other words, once granted a patent is subject to the national rules and practices of the member
states.
Such a fragmented system has two main implications for applicants. The first one is the high
costs of protection. In contrast to other large regional or national patent offices in the world,
payment of validation and renewal fees, the frequent translations requirements and the
potential enforcement and litigation costs must be multiplied by the number of countries
where the applicant aims at an effective protection. The second one is the complexity and
uncertainty induced by a highly heterogeneous system: a patent had to be enforced on a
country by country basis, with different practices and outcomes. National courts have so far
an exclusive jurisdiction over patent litigations, with effect on their own territory.
Furthermore, any infringement case should be dealt with using national law. In case of
multiply litigations there is a risk of different courts reaching the opposite conclusions.
The objective of this paper is to provide empirical evidence on the economic implications of
the currently highly fragmented patent system in Europe. Two methodological approaches are
used. The first one summarizes the results of recent simulations of patenting costs in Europe.
It shows that the fees and translations requirement induce relatively high costs for European
inventors. Despite the London Agreement, the cost of patenting in Europe is still prohibitive.
The second approach investigates the implications of the fragmented system for managing
and enforcing patents in Europe. Three case studies clearly underline the “inconsistencies”
that are induced by the European patent system in the current form, not to mention the high
degree of complexity and uncertainty induced by variegated approaches.
2. Cost consequences
All the costs associated with the patent application and maintenance can be divided into four
categories (Roland Berger, 2005 and van Pottelsberghe and François, 2008). The first
category consists in the procedural expenses that are due at each state of the patent
prosecution up to the grant. Those expenses include fees paid at filing, search, publication,
examination and grant. Under EPC, for the European patent to take effect as national patent it
has to be validated in the designated states. Validation procedure requires an applicant to
submit a European patent translated into national language of the designated country to the
national patent office for the publication. Fees that are paid during this procedure are counted
as procedural expenses whereas cost of translations constitutes a separate cost category. The
third category, cost of maintenance, includes annual renewal fees that are paid to national
patent offices in order to maintain the national rights associated with the patent. Apart from
the administrative expenses a patentee has to rely on legal advice at each state of patent life
starting from a very first step of drafting a patent application up to the representation before
EPO and national patent offices until the patent falls into public domain. Those external
expenses constitute the remaining category.
Evaluating the cost of patent protection is not straightforward as several components are
difficult to quantity and depend on the filing strategy of the applicant (e.g. patent size, the
application route, the quality of external services, the desired speed of granting process, the
targeted geographical scope of protection). Table 1 presents the outcome of three recent
studies that tackle the question of the cost of patenting in Europe. The numbers provided are
calculated for the EPO-direct applications (i.e. application that are filled directly at the EPO,
without going through the PCT process) and thus should be considered as a lower bound of
the real cost that an applicant would have to bear.1 Simulations show that the cost of patenting
increases with the number of countries. This is due to the three types of expenses: validation
fees, translation and renewal fees that have to be cumulated over the number of countries
where the applicant seeks effective protection. When looking solely on the short term cost
(i.e. procedural and translation fees) the translation costs account for 45 up to 60 percent,
depending on the number of countries in which protection is sought.2
Table 1: Comparison of the cost of ten years of protection, Euro direct application
Methodology
Year
Roland
Berger, 2005
van Pottelsberghe and François,
2008
van Pottelsberghe and Mejer,
2008
Survey
Simulation based on fees as
parameters
Simulation based on fees as
parameters
2005
2003
2008
W or ki ng H yp otheses
Countries designated
for protection
Number of claims
6
3
13
6
13
CH,DE,ES,
FR,IT,UK
DE,FR,UK
AT,BE,CH,DE,
DK,ES,FI,FR,IE,
IT,NL,SE,UK
CH,DE,FR,
IT,NL,UK
AT,BE,CH,DE,
DK,ES,FI,FR,IE,
IT,NL,SE,UK
10
18
18
18.2
18.2
Cost of protection
Procedural fees
4,400
4,670
6,575
6,385
7,789
Translation1
3,930
3,400
13,600
6,224
12,488
Renewal fees up to
10 years
5,600
2,975
16,597
6,974
13,770
External expenses2
17,780
12,500
19,500
-
-
TOTAL COST 10Y
34,720
23,545
56,272
19,583
34,047
Source: Roland Berger, 2005; van Pottelsberghe and François, 2008; van Pottelsberghe and Mejer, 2008
Notes: 1 Discrepancies between costs of translation come from different assumption about the size of the patent
and the cost of translation. Roland Berger (2005) assumes the average patent size to include 10 pages of
description and 3 pages of claims and the average cost of translation per page EUR 70, whereas van
Pottelsberghe and Mejer (2008) assume the average patent size of 16 and 4, respectively and the cost of
1
For further insights into different filing routes and the filing strategies see Chapter 6 in Guellec and van
Pottelsberghe (2007).
2
The language of the EP at grant is the ‘procedural language’ (one of the three EPO official languages i.e.
English, French or German). However, the EPO requires a patentee to provide a translation of claims into two
other official languages of the EPO before publishing it in the European Patent Bulletin. When seeking effective
protection in all 34 contracting states the patentee has to translate granted European patent into 24 languages.
translation to be EUR 76 per page of description and EUR 85 per page of claims. van Pottelsberghe and
François (2008) assume that the average cost of translation per language is EUR 1400.
2
External expenses are cost of relying on external (or internal) legal advice and expertise provided by
patent attorneys.
The patentee seeking ten years of effective protection in 13 EPC contracting states has to pay
EUR 34,047 and for protection in all EPC contracting states EUR 84,146, without accounting
for the cost of external services (van Pottelsberghe and Mejer, 2008). In order to ease postgranting translation requirements the group of EPC contracting states adopted the London
Agreement on the 17th of October 2000.3 This Agreement, which entered into force on the 1st
of May 2008, has been so far ratified by 15 contracting states: Belgium, Croatia, Denmark,
Germany, France, Iceland, Latvia, Lithuania, Lichtenstein, Luxembourg, Monaco, the
Netherlands, Slovenia, Sweden, Switzerland and the United Kingdom. According to the
London Agreement, states having an official language in common with one of the official
language of the EPO dispense the applicants from the translation of the description in the
three official languages (the claims still have to be translated). States having no official
language common with one of the official languages of the EPO may require a translation of
description into one of the three official languages.4 Countries that have not yet signed the
London Agreement still required the translation of the whole patent (including the claims and
the description) into their official language.5 van Pottelsberghe and Mejer (2008) evaluate the
impact of the London Agreement on the cost of patenting in Europe. Their results are
illustrated in Figure 1.
Figure 1: Relative cost saving due to the implementation of the London Agreement, as of
May 2008 (in EUR)
Procedural fees
Translation cost
Renew al fees
40,000
35,000
30,000
25,000
20,000
15,000
10,000
5,000
0
EPO-6
EPO-6 (LA)
EPO-13
EPO-13 (LA)
Source: Adapted from van Pottelsberghe and Mejer (2008, Appendix Table XX). These costs correspond to the
examination process fees, the translation costs and the renewal fees for ten years of protection in 6 and 13 EPC
member states, before and after the London Agreement (LA).
Relative cost saving on the procedural and translation cost due to the ratification of the
London Agreement is 29% when validating the European patent in six countries EPO-6 (i.e.
3
The official name of the document is Agreement dated 17 October 2000 on the application of Article 65 EPC.
In case of dispute full translation of the European patent into an official language of the state in which the
alleged infringement took place is necessary prior the suit.
5
In practice, for the validation of the European patent in Belgium, Germany, France, Lichtenstein, Luxembourg,
Monaco and in the United Kingdom no translation of the European patent is required, for validation in Latvia
and Slovenia only translation of claims is needed as those countries accept description written in any of the EPO
official languages. Croatia, Denmark, Iceland, the Netherlands and Sweden require not only translation of claims
but also translation of description to be submitted in English.
4
Germany, France, Italy, the Netherlands, Switzerland and the United Kingdom) and 24%
when validating in thirteen countries (i.e. EPO-13 that includes EPO-6 counties and Austria,
Belgium, Denmark, Finland, Ireland, Spain and Sweden). The saving rates are smaller when
looking at a ten years period for patent protection and correspond to 21% and 19% for EPO6
and EPO-13 respectively. This is undoubtedly a substantial cost decrease, but one must keep
in mind that a European patent still remains the most expensive region in the world. Figure 2
presents the comparative cost structure for ten years of patent protection in Europe (after the
entry into force of the London Agreement), Japan and the United States.
Figure 2: Comparative cost structure in the US and Europe, as of May 2008 (in Euro)
Procedural fees
Translation cost
Renew al fees
35,000
30,000
25,000
20,000
15,000
10,000
5,000
0
EPO-6 (LA)
EPO-13 (LA)
USPTO
JPO
Source: Adapted from van Pottelsberghe and Mejer (2008, Appendix Table XX). These costs correspond to the
examination process fees, the translation costs and the renewal fees for ten years of protection in 6 and 13 EPC
member states, before and after the London Agreement (LA).
Even after the ratification of the London Agreement by 15 EPC contracting states a European
patent is four to six times more expensive than a US patent when procedural and translation
costs are considered. In relative terms the difference remains large. Table 2 shows that the
cost per claim is five to nine times more expensive in Europe than in the US. In Japan, where
patents include much less claims, the cost per claim is twice as high as in the US. The last
column of the Table 3 takes into account the market size (measures as number of inhabitants
in each of the regions). It shows that after the London Agreement a the cost per claim per
capita is five to seven times more expensive than in the US.
Table 2: Procedural and translation cost relative to the US, fees as of May 2008
EPO-13
EPO-13 (LA)
EPO-6
EPO-6 (LA)
JPO
Per patent
9.0
6.9
5.6
4.0
0.8
Cost per claim
11.4
8.7
7.1
5.1
2.0
Cost per claim per capita
9.2
7.0
7.5
5.4
4.7
Source: Adapted from van Pottelsberghe and Mejer (2008, Appendix Table XX). These costs correspond to the
examination process fees, the translation costs and the renewal fees for ten years of protection in 6 and 13 EPC
member states, before and after the London Agreement (LA).
Due to these prohibitive costs, European patents are, on average, effectively validated and
enforced in about six countries (cf. van Pottelsberghe and van Zeebroeck (2008) and Harhoff
et al. (2007)).
In a nutshell, the high fragmentation of the European patent system induces a high and
prohibitive cost of patenting in Europe, about 5 to 8 times the relative cost of patenting in the
US. These prohibitive costs induce applicants to enforce their patents in (only) about six
countries on average (out of 34 Member States); which leads to two potential implications (or
discrepancies):
• The average patent being enforced in ‘only’ six countries on average, it makes it easy
for imitators (or infringers, or parallel importers) to enter the European Union through
a country where the patent has not been enforced, and then distribute it widely within
Europe. This of course does not preclude enforcing the patent in the countries where it
has been validated, but makes it much more difficult to identify imitated goods.
(documenting on free movement of goods)
• The patent system is justified by the dynamic efficiency it induces: the monopolistic
power aims at stimulating firms to innovate. It is generally opposed to the static
efficiency ensured by the antitrust or competition policies. The latter is controlled
centrally in Europe, by Directorate General Competition, for the whole European
Union. There is therefore a flagrant inconsistency within the European market, where
the competition policy concerns the whole market and its counter effect actually
concerns a few countries.
When litigation occur, these two discrepancies are further exacerbated, as illustrated in the
following two sections.
3. Litigation costs and institutional setting
Patent infringement suits are a costly way of enforcing intellectual property rights, especially
in Europe, where there is no uniform system to enforce European patents. According to EPC
European patent takes effect as national patent and has to be enforced on a country by country
basis.6 The EPC gives national courts exclusive jurisdiction over invalidating the European
patent with an effect on its territory.7 In other words, national courts have the power over
applying and interpreting harmonized substance of the EPC. Patent infringement cases are
also subject to national jurisdictions and should therefore be dealt with using national law.8
Such a system is very costly for both the applicant and the defendant, as the cost of potential
enforcement and litigation must frequently be cumulated over the number of countries where
the applicant has its patent effectively enforced.
Litigation cost vary significantly according to the type of proceedings, complexity of the case,
technical field of patenting and amounts in dispute. The EPO (WPL/4/03) estimates the cost
of patent litigation for four EPC contracting states, Germany, France, the Netherlands and
United Kingdom, where 90% of current European patent litigations take place. The broad
costs of litigation are presented in Table 3.
6
Art 2(2) EPC: The European patent shall, in each of the Contracting States for which it is granted, have the
effect of and be subject to the same conditions as a national patent granted by that State, unless this Convention
provides otherwise.
7
Art 138 of the EPC.
8
Art 64(3) of the EPC.
Table 3: Cost of patent litigation in selected EPC contracting states, in 1,000 EUR1
Germany 2
France
The Netherlands
United Kingdom
First Instance
50 to 250
50 to 200
60 to 200
150 to 1,500
Second Instance
90 to 200
40 to 150
40 to 150
150 to 1,000
140 to 450
90 to 350
100 to 350
300 to 2,500
Total
Source: Adopted form EPO Doc. WPL/11/05 Rev. 1, 16.02.2006
Notes: 1 Includes both court costs and patent attorney’s fees.
2
Cost for both validity and infringement.
The United Kingdom is by far the most expensive jurisdiction as the cost is much higher than
the sum of the costs among the three other jurisdictions. The cost of litigation in Germany,
France and the Netherlands is comparable. However, in case of multiple litigations, costs have
to be added across jurisdictions. The cumulated cost of enforcing the patent rights before the
four tribunals of the First Instance vary from the EUR 310,000 up to EUR 3,650,000 when
accounting for the cost of appeal at the Second Instance. Costs of multiple litigations are
extremely prohibitive especially for individuals and small and medium enterprises.
Jurisdictions differ not only in terms of cost of proceedings but also with respect to the
institutional setting and the quality of adjunctions (qualification and number of the judges
deciding on the case) as illustrated in the table 4.
Table 4: Characteristics of juridical systems in selected EPC contracting states
Judicial system
Germany
France
The
Netherlands
United
Kingdom
Dual system
Single system
Single system
Single system
The Court of First Instance
Federal Patent
Court for
invalidity;
12 District Courts
for infringement
(specialized court
in Düsseldorf )
10 Tribunal de
Grande Instance;
(specialized patent
judges in Paris and
Lyon)
District Court in
The Hague has a
specialized IP
chamber
Patents
Country Courts
and the Patents
Court of the
High Court
No of judges legally
qualified …
62
40
6
6
…out of those
technically qualified
46
0
0
5
Specialized court
Composition of the
court (number of judges
3 or 5
3
3
1
dealing with a case)
Source: Allgayer (2005), Council of the European Union Document No 11622/07 and EPO WPL/4/03,
Germany is an example of a country with dual judicial system where courts hearing
infringement cases are separated from the court that decides on the patent validity (or
revocation) albeit in France, the Netherlands and United Kingdom the same court hear and
judge in both cases. Table 4 shows that the degree of institutional specialization differs
substantially across countries. Some countries have specialized IP chambers (France and the
Netherlands), while others specialized patent courts (Germany and United Kingdom). With
regard to the quality of proceeding, Germany has the highest number of legally and
technically qualifies judges. No technically qualified judges are available in France and the
Netherlands.9 (…)
Determinants of settlement and litigation are purely economic - cost, quality and the speed of
the litigation. Parties involved in the patent dispute will adopt its behavior and litigate in
countries where the cost of settlement is high relative to the broad patenting cost (Katz, 1987
and Priest and Klein, 1984) (…) European patents that have been at the opposition before
the EPO have a higher probability of being litigated in the future (Gambardella et al., 2005).
Table 5: Litigation activity in 2004
Germany
France
The Netherlands
United Kingdom
Number of EP in force
307 488
252 289
121 333
257 600
Number of litigations
that started in 2004
500 (infingement)
500 (nulity)
50
50
120
Appeals form the first
instance judgments
350 (infingement)
250 (nulity)
20
25
3
Source: Adopted from CJA Consultants Ltd (2006)
Insert Graph with average cost at first instance vs share of litigation
To the cost of the litigation proceedings a patentee has to deal with the legal uncertainty
induced by the current European and national systems, as illustrated by the three case studies
presented in the next section.
9
However, the judge or the parties can designate a consultant (engineer or research) who is actively involved in
the proceedings but does not participate in the judges' deliberations (Council of the EU, 11622/07).
4. Legal uncertainty: 3 case studies
In order to illustrate the inconsistencies that are induced by the European patent system we
will provide and overview of three case studies (Table 5). It should be pointed here that the
focus of this study is not on the legal nature per se.
Table 6: Case studies - stylized facts
EPILADY
DDS v ECB
SENSEO
Patent Information
No of EP
EP0101656 B1
EP0455750 B1
EP0904717
Epilady
Document Security
System Inc. since 2005
Sara Lee/DE and Philips
Electronics
Date of filing (EPO)
29/07/1983
13/11/1991*
30/09/1998
Date of grand (EPO)
1986
01/01/2002
22/08/2001
Alleged infringer
Remington
European Central Bank
Group of Dutch and
Belgian companies2
Year of litigation
1989
2005
2001
Patent holder
Decisions of the Courts
Validation
Infringement
Validation
Infringement
Validation
Infringement
n.a
-
n.a.
pending
n.a.
-
upheld
n.a.
-
n.a.
revoked
n.a.
AT
-
NO
pending
-
-
-
BE
-
YES
pending
-
upheld
YES
DE
-
YES
upheld
-
-
-
ES
-
-
pending
-
-
-
IT
-
YES
pending
-
-
-
FR
-
NO
revoked
-
-
-
NL
-
YES
upheld
-
decision
postponed
NO
UK
-
NO
revoked
-
-
-
1
CFI of the EC
Opposition at the EPO
Source: Council of the European Union, Document No 11622/07, Bird and Bird (2004), CMS (2007) and Boyes
Turner (2007).
Notes: 1 Court of the First Instance of the European Commission
2
Retail chains: Coöperatieve Inkoopvereniging Intergro BA, Vomar and Drie Mollen in The Netherlands
as well as Fort Koffiebranderij, Cafes Liégois and Beyers Koffie in Belgium
Epilady
In 1980s Epilady invented its famous device: a “hair remover for use on ladies legs”. Once
having granted a European Patent for its invention in 1986, Epilady put its product in the
markets of 11 EPC contracting states. During the first two years of marketing and selling,
Epilady suited about 28 competitors who infringed its patent producing one-to-one products
and it won in all those cases. In mid-1988 Remington entered European market with a Smooth
and Silky, a device that performed exactly the same function as Epilady but with a slightly
different mechanism. The former used a rotating helical spring system whereas Smooth and
Silky a rotating rubber bar with slits in it. The Epilady brought a patent infringement action
against Reminton in Austria, Belgium, Germany, France, Italy, the Netherlands and the
United Kingdom.
The outcomes of those hearing were quite unexpected. National courts issued entirely
different decisions on the same subject matter, even though the EPC construct juridical
systems in the same way, providing a definition of the interpretation of European patent
application.10 No infringement of the Epilady patent was found in Austria, France and the
United Kingdom, whereas infringement was found in Belgium, German, Italy and the
Netherlands.
DDS v ECB
An American company Document Security System Inc., which specialized in developing,
licensing and selling anti-counterfeiting technology and products, holds a European patent for
‘non-replicable document and method of making same’.11 This technology makes bills
replicated by copiers and digital scanners show a stripe they are fakes. In August 2005 DDS
started an infringement action against the European Central Bank (ECB) claiming that the
ECB uses their technology. According to the EC Treaty, a person claiming compensation
from one of the European Institutions can bring his action before the Court of the First
Instance of the European Commission (CFI). DDS referred to this rule and launched
infringement case before CFI. Shortly after the proceedings before the CFI started, the ECB
filed claims to invalidate the DDS Patent in: Austria, Belgium, Germany, France, Italy,
Luxembourg, the Netherlands and the United Kingdom.
With regard to revocation, already few national courts have taken decisions concerning the
interpretation of the patent claims. English and French courts invalidated the DSS patent
whereas Dutch and German took the opposite decision upholding the validity. The case before
the other courts is still pending so is the infringement case before the CFI. Additionally, to the
inconsistent interpretation of the patent application, this example shows that the current
system allows for a situation in which the validity of the same European patent is judged
separately from the infringement at different courts: one central European and one national.
Different courts hearing different aspects of the case is not new in countries that have a dual
system i.e. Austria and Germany but not for counties with the single system where there is
only one court that judges on both infringement and validation.
Senseo
10
Art 69(1) of the EPC reads as follows: The extent of the protection conferred by a European patent or a
European patent application shall be determined by the terms of the claims. Nevertheless, the description and
drawings shall be used to interpret the claims. During the discussions at the diplomatic conference on the final
version of the EPC this simple rule was interpreted in completely different way by the British and German
courts. Instead of rewording the article protocol on the interpretation of this article was agreed upon and
incorporated into the drat of the EPC (Straus, 2000).
11
Before 2001 DSS was called New Sky Communications, Inc. and specialized in developed and produced
theatrical motion pictures and home video cassettes. In 2002 it acquired, through a reverse merger, four
companies: Lester Levin, Inc. d/b/a Patrick Printing; Document Security Consultants, Inc. and Imperial
Encryption, Inc., Thomas M. Wicker Enterprises, Inc., and changed its name to DSS. With those acquisitions the
Company came to the possession of various intangible assents including the European Patent EP0455750 B1.
The Dutch-American company Sara Lee/DE and Philips Electronics developed a Senseo
coffee machine, which makes an individual cups of coffee supplied in circular pads that are
inserted into the machine by the user. For this technology they were granted a European
patent “assembly for the use in a coffee machine for preparing a coffee, container and pouch
(pad) of said assembly”. The coffee machine proved to be a great success and competitors
started entering the Senseo market for pads delivering copycats to the market. In order to
secure its monopolistic position in the market for pads Sara Lee initiated number of
infringement proceedings against competitors started towards the end of 2001, including those
in Belgium and the Netherlands. She argued that as the pads constituted an essential part of
the innovation producing those pads constitute an indirect infringement of her patent. Shortly
after grant, in September 2001, the firm Alber Heijn B.V filed an opposition before the
EPO.12 In mid 2002 the Court of Appeal in The Hague held in its preliminary proceedings
that there was no indirect infringement action. Knowing the views of the Court in The Hague
on the subject matter Sara Lee issued number of additional proceedings. By the end of 2003
Sara Lee’s competitors seeking the declaration of non-infringement in Belgium filled an
action before the Court of First Instance in Antwerp and won.
However, Sara Lee appealed this decision and in 2004, without waiting for the outcome of the
opposition before the EPO, the Antwerp Court of Appeal held that the competitors infringed
Sara Lee’s patent: they had delivered means that allowed third parties to make use of the
patent which constituted an indirect infringement of the patent. Sara Lee won in Belgium and
kept the monopoly power until August 2006 when the EPO revoked her patent in full for lack
of inventive step.
Senseo case shows that the current system not only allows for discrepancies in interpreting the
patent claims but also the lack of the logical order making two institutions deciding on the
patent validity: the EPO for the European patent (as opposition after grant) and national court
for exactly the same patent but as national patent (as validated in the designated state). The
geographical scope of the decision in both cases is different. The EPO decides on the
European patent thus revocation will result in annulations of the patent in all the states where
the patent was effectively validated, whereas national court decision will be binding only
within the borders of the particular county.
12
The opposition procedure before the EPO allows a European patent to be centrally opposed if it was allegedly
wrongly granted. It can be posed by any person from the public. The notice of the opposition should be filed
within nine months from the publication of the mention of a grant of the European Patent. On average, it takes 3
years for the Board of Appeal at the EPO to issue the final decision (Graham et al., 2003).
Figure 6: Litigation discrepancies within Europe
Senseo
Senseo
National
Court
ECB
Epilady
Epilady
?
Centralized
European
Court
( E CJ /E P O)
ECB
Senseo
INFRINGEMENT
VALIDITY
Table 7: Summary - inconsistencies of the existing system
Epilady
claim interpretation
Document Security Systems,
Inc.
Sara Lee/DE and Philips
Electronics
claim interpretation
claim interpretation
Courts rule on infringement and
revocation (not within the same
national jurisdiction)
interpretation of indirect
infringement
Two different institutions ruling
on the same subject matter
5. Concluding remarks
References
Allgayer U., 2005, A comparison of the litigations systems in Germany, France and United
Kingdom, Patenta (Patent Attorney)
Bessen J., ad Meurer M.J., 2008, Patent Failure, Princeton University Press, p.330
CJA Consultants Ltd, European Policy Advisers, Britain and Brussels, June 2006, Patent
Litigation Insurance: A Study for the European Commission on the feasibility of possible
insurance schemes against patent litigation risks, Appendix to the Final Report
Communication from the Commission to the European Parliament and the Council Enhancing the patent system in Europe, COM/2007/0165 final
European Patent Convention 1973, revised versions 13.12.2007
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