German Trademark Law - Germany
IP-Community Patent:
The Community trade mark and Community Design have been an unparalleled succes and found very attractive in the UK. However, there have been talks about Community patents. Although attempts were made in this direction, but national self-interest to make them a reality is staggering. However, in January 2006, the European Commission sent out questionnaires to IP practitioners across Europe to see if a workable system for the Community patent of an alternative, in the form of a patent litigation agreement, could be found. The UK is going to review its entire IP framework, including patents. From the late 1980, the Netherlands made bullish strides towards testing out the possibility of harmonized European patent rights by imposing pan-European injunctions. If any alleged infringer counters arguments that he does not infringe because the patent is invalid, the pan-European infringement action may be torpedoed at an early stage because validity of registered IP rights must be considered on a national basis. However the question is pending before the European Court of Justice (ECJ).
Pan-European injunctions, while highly attractive to patentees, were too painful for defendants. A pan-European injunction is granted where the company with key responsibility for the infringing activity occurring throughout the European Union was based in the Netherlands or where the controlling company was entirely outside the EU, for example, in the US. Based on this concept, the Netherlands courts (in case Expandable-Crafts vs. Boston Scientific) could not consider the issue of validity in any other member state and stated that a decision on infringement did not require that of them. There is a lack of harmonization when it comes to patent construction across the EU, even with the benefit under European Patent Convention.
As with all fabulous ideas that become bandwagons for copycats, the rise and fall of the pan-European injunction has distinct parallels with the recent approach to interim injunctions in the UK. Admittedly, interim injunctions are still assumed to apply only in generic pharmaceutical cases - the presumption being that other industries do not encounter the rapid price depression or competition that results from numbers of competitors making simultaneous entry into the market. The question of pan-European injunctions has boiled up again following of an opinion in Roche vs Primus. The referral was from the Dutch Hoge and concerned the question of whether a pan-European injunction could be granted based on relatively classic patent concerning a biotechnological means of monitoring the spread of certain forms of cancer by testing samples of serum or plasma. The defendants, Roche, was alleged to be infringing through its local established companies in the Netherlands, and then the US, Belgium, Germany, France, UK, Switzerland, Austria and Sweden. The Hague court had held that it has jurisdiction to impose an injunction in all of the relevant countries by virtue of the Brussels Convention as well as in Switzerland and the US. But this irksome question had to be referred to the ECJ. The Netherlands company Hoge took it upon itself to refer the question to the ECJ to be resolved once and for all.
The European Commission now looking into the workable solution and there may now be sufficient momentum for the consultation exercise to result to consider this along the lines of the European Patent Litigation Agreement rather than a Community patent.
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