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26 Patent litigation strategies in Germany: maneuvering the evolving landscape of bifurcation

  • Matthias Lamping and Christoph Rademacher
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European Patent Law
This chapter is in the book European Patent Law

Abstract

Germany is the most relevant venue for patent litigation in Europe. By some metrics, German courts decide more patent infringement cases than courts in any other country in the world, and, depending on the year, patent infringement filings at German courts account for more than 70 % of all infringement filings across Europe. This chapter will highlight the role of bifurcating infringement and validity determination as the chief reason behind such popularity of German courts. The chapter will therefore introduce the contours of bifurcation under German law as well as at the Unified Patent Court (UPC); as a backdrop, it will also introduce the experience of the Japanese system, which used to operate a German-style bifurcation and abolished such bifurcation approximately 20 years ago. The chapter will conclude by discussing the different strategic options that parties to patent disputes encounter both in Germany and at the UPC.

Abstract

Germany is the most relevant venue for patent litigation in Europe. By some metrics, German courts decide more patent infringement cases than courts in any other country in the world, and, depending on the year, patent infringement filings at German courts account for more than 70 % of all infringement filings across Europe. This chapter will highlight the role of bifurcating infringement and validity determination as the chief reason behind such popularity of German courts. The chapter will therefore introduce the contours of bifurcation under German law as well as at the Unified Patent Court (UPC); as a backdrop, it will also introduce the experience of the Japanese system, which used to operate a German-style bifurcation and abolished such bifurcation approximately 20 years ago. The chapter will conclude by discussing the different strategic options that parties to patent disputes encounter both in Germany and at the UPC.

Chapters in this book

  1. Frontmatter I
  2. Foreword V
  3. Preface VII
  4. Table of contents IX
  5. List of contributors XXIII
  6. Introduction XXV
  7. Part 1: The existing system: the EPC
  8. 1 The role of EPO Boards of Appeal in shaping of patent law in Europe 1
  9. 2 The interaction between the UPC, national courts, and the EPO Boards of Appeal 17
  10. 3 Cross-border patent litigation under the EPC 27
  11. 4 Plausibility: a route to stronger and more robust patents? 43
  12. 5 Wrongful preliminary injunctions and EU procedural law 59
  13. 6 Proportionality and patent injunctions 79
  14. Part 2: The European Patent with unitary effect and the Unified Patent Court
  15. 7 The novelty and inventive step requirement in Europe and under the UPP 97
  16. 8 Exceptions and limitations (27 UPCA) 109
  17. 9 Patent Arbitration under the Agreement on a Unified Patent Court 129
  18. 10 Supplementary Protection Certificates (Article 30) 153
  19. 11 Liability for infringement of EU law 169
  20. 12 Regulation 542/2014 on jurisdiction 185
  21. 13 Exclusive jurisdiction and competence 197
  22. 14 Constitutional aspects of the Unitary Patent Package (UPP) and the Unified Patent Court (UPC) – question marks remain 205
  23. 15 Trusting the Unified Patent Court: the importance of the institutional design of the UPC and its judges 221
  24. 16 The EPO within the Unitary Patent System 235
  25. 17 The role of the Court of Justice of the European Union 251
  26. 18 Rules of procedure of the UPC, a judge’s perspective 287
  27. 19 The user in the UPC 301
  28. 20 Unified Patent Court and international law 315
  29. 21 The patent with unitary effect and competition law 339
  30. 22 A system fit for innovation? Part I: (Dis-)incentives for potential patentees in the UP legal framework 355
  31. 23 A system fit for innovation? Part II: (Dis-)advantages for follow-on inventors in the UP legal framework 373
  32. 24 Patent mediation 397
  33. 25 Litigation strategies and bifurcation 411
  34. 26 Patent litigation strategies in Germany: maneuvering the evolving landscape of bifurcation 423
  35. Part 3: Co-existence and alternatives
  36. 27 The co-existence between EPC and patents with unitary effect 449
  37. 28 Institutional coexistence: the necessity of judicial dialogue and cooperation in the UPC 463
  38. 29 The role of the CJEU in European patent law from a procedural perspective 477
  39. 30 Gene patents in the EPC and the European patent with unitary effect 497
  40. 31 Decision-makers, institutional influences and the role of ethical issues in the patenting of biotechnological inventions in Europe: enter the unitary patent system 517
  41. 32 The UPC and the FRAND injunction 533
  42. Index 557
https://doi.org/10.1515/9783110781687-026

Chapters in this book

  1. Frontmatter I
  2. Foreword V
  3. Preface VII
  4. Table of contents IX
  5. List of contributors XXIII
  6. Introduction XXV
  7. Part 1: The existing system: the EPC
  8. 1 The role of EPO Boards of Appeal in shaping of patent law in Europe 1
  9. 2 The interaction between the UPC, national courts, and the EPO Boards of Appeal 17
  10. 3 Cross-border patent litigation under the EPC 27
  11. 4 Plausibility: a route to stronger and more robust patents? 43
  12. 5 Wrongful preliminary injunctions and EU procedural law 59
  13. 6 Proportionality and patent injunctions 79
  14. Part 2: The European Patent with unitary effect and the Unified Patent Court
  15. 7 The novelty and inventive step requirement in Europe and under the UPP 97
  16. 8 Exceptions and limitations (27 UPCA) 109
  17. 9 Patent Arbitration under the Agreement on a Unified Patent Court 129
  18. 10 Supplementary Protection Certificates (Article 30) 153
  19. 11 Liability for infringement of EU law 169
  20. 12 Regulation 542/2014 on jurisdiction 185
  21. 13 Exclusive jurisdiction and competence 197
  22. 14 Constitutional aspects of the Unitary Patent Package (UPP) and the Unified Patent Court (UPC) – question marks remain 205
  23. 15 Trusting the Unified Patent Court: the importance of the institutional design of the UPC and its judges 221
  24. 16 The EPO within the Unitary Patent System 235
  25. 17 The role of the Court of Justice of the European Union 251
  26. 18 Rules of procedure of the UPC, a judge’s perspective 287
  27. 19 The user in the UPC 301
  28. 20 Unified Patent Court and international law 315
  29. 21 The patent with unitary effect and competition law 339
  30. 22 A system fit for innovation? Part I: (Dis-)incentives for potential patentees in the UP legal framework 355
  31. 23 A system fit for innovation? Part II: (Dis-)advantages for follow-on inventors in the UP legal framework 373
  32. 24 Patent mediation 397
  33. 25 Litigation strategies and bifurcation 411
  34. 26 Patent litigation strategies in Germany: maneuvering the evolving landscape of bifurcation 423
  35. Part 3: Co-existence and alternatives
  36. 27 The co-existence between EPC and patents with unitary effect 449
  37. 28 Institutional coexistence: the necessity of judicial dialogue and cooperation in the UPC 463
  38. 29 The role of the CJEU in European patent law from a procedural perspective 477
  39. 30 Gene patents in the EPC and the European patent with unitary effect 497
  40. 31 Decision-makers, institutional influences and the role of ethical issues in the patenting of biotechnological inventions in Europe: enter the unitary patent system 517
  41. 32 The UPC and the FRAND injunction 533
  42. Index 557
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