GERMANY Patent litigation trends in the US
EVEN THOUGH THERE IS NOW AN AGREEMENT TO ESTABLISH THE UNIFIED PATENT COURT AND THE UNITARY PATENT, THE CURRENT SITUATION IS THAT THE SO-CALLED EUROPEAN PATENT, ONCE GRANTED, DISINTEGRATES INTO SEPARATE NATIONAL PARTS.
T e US Supreme Court has issued a number of rulings that have curbed some of the leverage NPEs can wield when attempting to monetise their patents in the US. T e 2006 decision in eBay v MercExchange made it much more diffi cult for NPE patent holders to receive injunctions by establishing a four-part test to determine whether an injunction is warranted.
In MedImmune v Genentech (2007), the court ruled a licensee is not required to terminate its licence agreement before seeking a declaratory judgment to determine whether the subject patent is invalid, unenforceable, or not infringed. Hence, it is easier for alleged infringers to challenge the validity of patents, while maintaining their licence rights.
In April 2007, the court went further in KSR International v Telefl ex, raising the bar for patent holders to prove their inventions are nonobvious. T e ruling made many existing patents more vulnerable to litigation— particularly if they
represent merely incremental improvements or
combinations of prior elements—and may also make new patents harder to get. Finally, in the matter of Bilski v T e US Patent and Trademark Offi ce, concerning whether business methods are patentable subject matter and under what conditions, the IP community was severely aff ected by the outcome.
In European courts things are different
Even though there is now an agreement to establish the Unifi ed European Patent Court and the Unitary European Patent, the current situation is that the so-called European Patent (EP), once granted, disintegrates into separate national parts. As a consequence of the fact that in the end patents are national, patent litigation is national as well as ‘European’. Despite stemming from the same EP, in practice the respective nationalised parts have to be litigated in each country separately. Mostly this does not happen because the parties in dispute settle aſt er having litigated in one or two countries. Even the claim scope of a EP can vary in diff erent countries due
www.worldipreview.com World Intellectual Property Review e-Digest 2013 69
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