GAT, Solvay, and the Centralization of Patent Litigation in Europe
19 Pages Posted: 27 Sep 2012 Last revised: 26 Apr 2013
Date Written: September 27, 2012
This article discusses the judgment of the Court of Justice of the European Union in Solvay v. Honeywell and its potential impact on the possibility of concentrating the litigation of multiple countries’ patents in a single national court.
Concentrating patent litigation that involves parallel patents in a single national court would improve the enforcement of patent rights by lowering litigation costs and enhancing the consistency of judgments concerning patents covering the same invention in multiple countries. However, any concentration of patent litigation is difficult because of the rule mandating that only courts in the country where a patent was granted may adjudicate the validity of the patent. In the European Union, the 2006 judgment in GAT v. LuK appeared to solidify this notion by holding that the exclusive jurisdiction rule, now in Article 24(4) of the Brussels I Regulation (recast), applies to any decision on patent validity. However, the recent decision in Solvay opens the interesting possibility that preliminary assessments of patent validity could be made even by courts outside the country of the patent grant. This article discusses whether Solvay could be extended to cover the assessments of validity that German courts conduct in infringement proceedings. If Solvay were to apply to these assessments, German courts could become the natural centers of litigation of infringements of multiple countries’ patents in Europe.
Keywords: patent, unified patent court, patent court agreement, European patent, litigation, jurisdiction, European Union, Court of Justice of the European Union, ECJ, CJEU, GAT v. LuK, Solvay, bifurcation, Voda v. Cordis
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