Differences and Similarities Between National Laws
Substantive patent law has been harmonized to a certain extent across national laws in Europe, notably upon signature of the Strasbourg Convention of 1963 and the European Patent Convention (EPC) of 1973, and upon entry into force of the TRIPs Agreement. In practice however, the interpretation of common substantive provisions have led to different interpretations in different European countries.
Regarding procedural law, and especially regarding the procedures to examine infringement and validity of patents before national courts, significant differences exist across national laws. For instance, while in Germany validity and infringement of patents are examined by different courts in different procedures, in the United Kingdom the same court is in charge of examining validity and infringement actions. According to Mr Justice Kitchin, a British judge,
- "... it is desirable to try infringement and validity issues together, where at all possible. If they are tried separately it is all too easy for the patentee to argue for a narrow interpretation of his claim when defending it but an expansive interpretation when asserting infringement."
In this respect, Lord Justice Jacob referred to a comparison reportedly made by Professor Mario Franzosi between a patentee and an Angora cat:
- "When validity is challenged, the patentee says his patent is very small: the cat with its fur smoothed down, cuddly and sleepy. But when the patentee goes on the attack, the fur bristles, the cat is twice the size with teeth bared and eyes ablaze."
Read more about this topic: European Patent Law
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