Although patent litigators should always be mindful that patent litigation has, with some justification, been called the ‘pathology of the patent system’, not so much as a criticism, but more in recognition of how remarkably little patent litigation there is in fact when seen in relation to the ever increasing number of patents in force at any one time, patent litigation is also the anvil on which patent law is forged. This is because the ‘black letter’ law of patents tends to be terse by comparison to most other areas of law, and it is only with experience of how courts and tribunals interpret such law and apply it that one can start to appreciate its true scope and effect. This, in part, explains how such similarly expressed statutory provisions as one finds in different patent laws can sometimes result in such different outcomes in different jurisdictions – disparities that are all the more evident when they concern the same product or process, and patents that, though in different jurisdictions, are all members of the same family, and are all intended to protect the same invention. As it becomes increasingly common for patent disputes to proceed in multiple jurisdictions these differences in outcome become ever more apparent.
Such disparities are not only a consequence of differing substantive laws, or differences in interpretation of similarly expressed laws. They can also be a consequence of the considerable procedural differences between jurisdictions, the nature of which is outlined in this Review. However, the Review does not only summarise patent litigation procedures. The respective contributors to it, as leading practitioners in each of their jurisdictions, also focus on recent developments in substantive patent law as demonstrated by the most important recent court decisions in their respective jurisdictions, meaning that this Review also provides insight into the current controversies that affect patent law generally.
For those of us in Europe, the past year has seen little progress towards the entry into force of the long-heralded Unified Patent Court Agreement, which is the subject of a chapter in this Review. Its ratification by the UK earlier in 2018 leaves the pending challenge before the Federal German Constitutional Court to the consistency of the Agreement with the German Constitution as the only current impediment to its entry into force. But a new impediment now looms with the imminent withdrawal of the UK from the EU as from 29 March 2019, because the Agreement as drafted does not envisage participation by non-EU Member States, an issue that might more readily be addressed were the Agreement to be already in force before such withdrawal occurs. This raises the prospect, unless the German challenge is rejected in the very near future, of having to amend the Agreement before it can enter into force to take account of the UK withdrawal from the EU; either to reflect its exclusion from the Agreement or, as the UK government has urged, to provide for its inclusion, a course that, however, it is not at all clear would be compatible with the case law of the European Court of Justice, irrespective of any treaty language.
Wilmer Cutler Pickering Hale and Dorr LLP