"This article analyses different costs rules and practices regarding patent litigation in Europe, explains the functions played by cost-shifting provisions and proposes the introduction of a modulated two-way fee-shifting system, in order to enhance patent litigation".The author concludes:
Cost shifting is one of the fundamental elements of litigation, as it represents an important element in the decision to go to court. In Europe, the Enforcement Directive tried to harmonize national costs rules, but they, and the respective practices, are still particularly divergent among EU Member States, as the analysis showed. The different systems adopted by Germany and England and Wales show that each scheme has its advantages, but also some shortcomings. Although one Member State can learn from the practice of the others, its own tradition may represent a barrier to the implementation of alternative solutions.This is obviously of interest to readers of PatLit who litigate patents in Europe, or may find themselves doing so under the new European patent regime in the near future.
However, the creation of the UPC represents an exceptional opportunity for the adoption of new measures on litigation rules in general and also on cost-shifting provisions in particular. Although the different traditions of each Member State may and should be considered, the creation of the UPC could allow the adoption of creative measures, as long as they comply with EU rules. The UPC should therefore make use of costs scales, profiting from the German experience, and of an issue-based approach, benefiting from the English and Welsh practice. Moreover, the UPC should reformulate the English and Welsh experience with certificates of contested validity and create a modulated two-way fee-shifting system, which may help improve the patent system.