Friday, 27 September 2013

Patent Litigation in Europe: a portrait of the recent past

ZEW Discussion Paper No. 13-072, Patent Litigation in Europe, is now available online -- you can click here to access the 67-page pdf. The authors of this paper, which is packed with solid data, are the formidable team of Katrin Cremers, Max Ernicke, Fabian Gaessler, Dietmar Harhoff, Christian Helmers, Luke McDonagh, Paula Schliessler and Nicolas van Zeebroeck.

In the abstract, the authors write:
"We compare patent litigation cases across four European jurisdictions – Germany, France, the Netherlands, and the UK – covering cases filed during the period 2000- 2008. For our analysis, we assemble a new dataset that contains detailed information at the case, litigant, and patent level for patent cases filed at the major courts in the four jurisdictions. We find substantial differences across jurisdictions in terms of case loads. Courts in Germany hear by far the largest number of cases in absolute terms, but also when taking country size into account. We also find important between country differences in terms of outcomes, the share of cases that is appealed, as well as the characteristics of litigants and litigated patents. A considerable number of patents are litigated in multiple jurisdictions, but the majority of patents are subject to litigation only in one of the four jurisdictions".
Two of the authors -- Christian Helmers and Luke McDonagh -- are also the authors of "Patent litigation in the UK: an empirical survey 2000–2008", which is now available online to subscribers to the Journal of Intellectual Property Law & Practice (JIPLP): click here for the abstract.

This blogger is always excited to see the results of research conducted on real data rather than mere speculation.  His only regret is that we have had to wait until the tail-end of 2013 for this helpful analysis of the world of European patent litigation up to five years ago.  The major and highly successful reforms of the Patents County Court for England and Wales in October 2010 all happened far too late for inclusion. Let's hope that the authors of Patent Litigation in Europe are given the funds and the support to produce a sequel.


MaxDrei said...

I have scrolled very quickly through the Paper, looking for one specific Point, but did not find it. So I mention it here.

English fact-finding processes are rigorous. That is why it costs a litigant GBP 1 Million in just 9 months, from issuing proceedings to the run up to trial.

But for pharma (innovative or generic) it is worth it because even if it doesn't settle before trial it will yield (in the first instance judgement) a "road map" for settling the Dispute all over Europe, within a year to 18 months.

The stats show in Germany a high rate of settlement before coming to trial, higher than in England. But I'm sceptical. There are thousands of low value actions in Germany, where litigation is a first rather than a last resort. For high value Actions I suspect cases settle earlier in England than in Germany. Hugh Laddie cautioned that the English Courts are not a branch of Social Services. But they are in Germany, to the benefit of SME litigants. If you prefer, think of the German courts (in comparison with England) as ADR with the added spice of injunctive relief.

We Need BOTH the English and German Systems, to cater for all user needs. No wonder London does pharma and the courts in Germany mech eng. No wonder that split is reflected in the UPC System.

But what do others think?

Luke McD said...

Dear Max Drei,

You make an interesting point that perhaps we could be more explicit about. We do, however, talk on page 19 about the obligation for gathering of evidence/disclosure in the English courts, and we discuss this is greater detail in the JIPLP article (which just focuses on the UK) and especially in 'Patent litigation in England and Wales and the issue-based approach to costs' Civil Justice Quarterly 32(3) (2013) 369-384 (McDonagh and Helmers) where we link it directly with the high costs of English legal proceedings viz. other jurisdictions. We also note in the report that high value patents tend to be litigated in the UK, and some are litigated in multiple jurisdictions.

Regarding SMEs, Birss J. stated not so long ago that the recent reforms to the PCC have led to an increase in patent cases at that venue, and I think this will continue to increase, though not anything near to German-levels, for the reasons you point out.

What impact the UPC will have on SME litigation, of course, is difficult to gauge at this point, though it is possible that, as you say, the separation between eng. and pharma. courts will be of great significance.


Luke McDonagh