European Patent Litigation and Germany’s Role as the Forum of Choice

In today’s Frankfurter Allgemeine, my partner Gisbert Hohagen sets out the new patent landscape in the European Union (Deutschlands führende Rolle in Patentprozessen ist gefährdet – paywalled). He summarizes the changes that the new system of unified patents will bring, and discusses the challenges that the new enforcement regime poses to Germany’s role as the forum of choice for patent litigation – with a market share of 60% of Europe’s patent disputes.

The new European patent regime will not only introduce the Unitary Patent, but also the Unified Patent Court that eventually will have exclusive jurisdiction for disputes relating to (old style) European patents and (new) unitary patents. As currently envisaged, the Unified Patent Court will comprise a Court of First Instance with a central division located in Paris and two sections in London and Munich, a Court of Appeal in Luxembourg, and a Registry. In addition to the central division, the Court of First Instance will have several local and regional divisions in the Member States. Germany currently expects to have four, and will see some internal competition for these four slots.

If the system really leads to a more level playing field amongst European patent venues, as it is intended, then Germany’s advantages might be in danger of being eroded. Gisbert rightly argues that one measure would greatly assist in retaining Germany’s position, namely to allow for German court proceedings to be conducted in English. We have covered the proposed legislation to bring the English language into the German court rooms here in some detail. Since the German parliament heard experts on the topic last year (here is the guest post by Martin Illmer, one of the experts), things have become very quiet, though, and in an election year, this issue may not be on top of the political agenda.

As I said in an earlier post, in my opinion the Düsseldorf court as one of  Europe’s top patent venues would have been a better choice for the “English language in German courts” experiment than Cologne, Bonn and Aachen. There, apparently the parties’ appetite for English language proceedings has been very limited. If there is little progress on the legislative side, it will be for the patent bar and patent judges to evaluate the options and explore the Cologne approach.


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