Wednesday, 2 October 2013

10 Observations on Patent Litigation in Europe

These observations are based on the recent report ‘PatentLitigation in Europe’ which compares patent litigation in Germany, France, the Netherlands and the UK.  These territories have the majority of patent cases in Europe.  The report is based on patent cases in 2000-2008 and so there is a possibility that its conclusions may be out of date.  Data for appeals was only available for Germany and the UK.

1.       Germany has by far the most patent cases, measured both in absolute terms and taking into account country size.  Over the period 2000-2008 the total numbers of patent cases was as follows:

Germany 6,739

France 1,002

The Netherlands 326

UK 256


2.       Median times to a decision for an infringement case are:

France: 2 years

Germany: 9 months

The Netherlands: 10 months

UK: 11 months

3.       There are substantial differences in outcomes.  In the UK a high number of patents are revoked in infringement cases, 42.0%, versus 25.7% in Germany.

4.       A smaller number of litigated patents are held to be infringed in France (5.6%) than elsewhere: Germany (22%), the Netherlands (36.0%) and the UK (14.7%).

5.       There are significant differences in whether or not settlement happened.  More than 60% of cases in Germany end with settlement, but only 40% in the UK.

6.       More cases go to appeal in the UK. 46% of revocation and infringement cases go to appeal in the UK, where for a quarter of cases the first instance decision is overturned.  In Germany it is much lower proportion (10% for revocation cases and 15% for infringement cases), with 16% of first instance judgements overturned.

7.       The UK and Netherlands have the largest number of cases which are litigated in other jurisdictions (for UK 26% and for the Netherlands 15%).  The corresponding figures are 2% for Germany and 6% for France.  Overall only 8.4% of litigated European patents are subject to litigation in more than one of these four countries.

8.       The pharmaceutical industry is over-represented as litigants in the UK, with most patents that are litigated being related to chemicals and pharmaceuticals (31%)  The machinery industry is over-represented as litigants in Germany and most litigated patents are in the areas of mechanical and civil engineering (33%).

9.       In terms of company size, the greatest share of litigants in the UK are large companies, whereas in other jurisdictions they are micro and small companies.  This reflects the fact that pharmaceutical companies litigate in the UK and litigation is also more expensive there.

10.   Patents litigated in the UK tend to be more valuable (defined by family size and number of inventors) and broader (defined by number of IPC classes).

You may also wish to see related posts 10 Points on AIA Post Grant Proceedings and Top 10 Points from a UK Barrister to Patent Attorneys.

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