Although there may be different reasons for patenting an invention, courts look at patents for what they are under the law: a right for the patent holder to block others from exploiting their invention . Patents are granted for technical inventions that are deemed to be novel, inventive and industrially applicable. Nevertheless, a granted patent can still be revoked. For example, a court may decide that the invention was not novel or inventive after all in view of a relevant document not identified during examination proceedings.

Force to stop exploiting 

Primarily, the holder of a patent can start a court case to try and force a third party to stop exploiting the invention, i.e. to stop ‘infringement’ of the patent and thereby ‘enforce’ the patent. Additionally, in some cases, the patent holder can claim damages from the infringer. If the court rules in favor of the patent holder, ultimately, the enforcement can be carried out physically through a bailiff, who may for example seize products and other assets.

Revoke the patent

In response to an enforcement action, but also separate from it, third parties can ask a court to revoke the patent when they believe the patent to be invalid.  If the court revokes the patent, this is entered in the relevant register so as to inform the public.

Burden of proof

The general maxim that “who asserts must prove” also applies in patent cases. That generally means that the patent holder has to prove that the patent is infringed by the third party. Meanwhile the third party has to prove (if asserted) that the patent is invalid. This typically involves the provision of documents or other evidence in order to dispute the patent’s novelty and inventive step.

Arguing

In general, both parties are allowed to defend themselves by submitting arguments or evidence to dispute the assertions of the other party. For example, a party accused of infringement can explain why they believe they do not infringe the patent. Only in some very urgent situations, courts may issue an immediate order without hearing the affected party beforehand.

Depending on the specifics of the case, patent litigation actions can be brought to court in one or more jurisdictions. Though patent law is generally well harmonized internationally, there are some procedural differences among courts in different countries or regions, as illustrated in the table below. Moreover, courts in different jurisdictions may have varying ways to assess for instance infringement. See table below.

If quick action is needed to prevent harm from (further) infringement, the patent holder can generally request a court for preliminary measures. In such proceedings, an infringement injunction can be obtained in a very short time, sometimes even within a few days or weeks.

Decisions from each of these courts can generally be appealed at a corresponding appeals court. Appeals are intended to help ensure correct application of the law. On the other hand, they do prolong the time until a final decision is available.

Parties in these proceedings are generally required to enlist professional representation. In case of patent infringement actions, the legal team typically includes both a lawyer and a patent attorney.

Courts play an important role in resolving patent disputes. In the most basic scenario, this results in one party winning and the other party losing. Intermediate outcomes are also possible, for example where the patent is limited but not completely revoked, or where some but not all disputed products are held to infringe.

Except for the EPO, courts will generally order the losing party to pay some or all of the legal costs of the winning party, in what is sometimes called a ‘costs order’. While this can alleviate some of the financial impact of litigation for one party, it notably increases that impact for the other party at the same time. With the outcome of litigation never being fully predictable, parties must consider both possible scenarios upfront.

Although litigation is essentially the ultimate mechanism to deal with patent disputes, alternative types of resolution may be preferred. For example, parties may first try and settle their dispute before proceeding to litigation. Also, parties may sometimes agree to find a solution through mediation or arbitration. The reasons that parties choose one of these forms vary, and may include, for example, expediting a solution, avoiding excessive (litigation) costs, or ensuring confidentiality.  

Whether or not you see patent litigation as desirable for your company, it pays to be well prepared for the eventuality from an early stage. Smart preparation steps not only increase your chances if it comes to actual litigation, but just as importantly they help you navigate the world of patents outside the courts

For technical innovators, a well-considered patent strategy generally includes the following elements of preparation.

• Monitoring patenting activities of competitors.; 

• Assessing the strengths and weaknesses of patents and pending patent applications, both those of your own and those of your competitors;

• Identifying and collecting evidence of possible infringement of your patents by ;

• Regularly reviewing your own activities for possible infringement of patents of others, in particular before bringing a new product or method on the market; 

• Considering different courts and their jurisdictions in geographical decisions about your patents, taking into account costs and your own commercial activities.

The patent attorneys at V.O. are ready to help you to navigate these and other patent challenges.