The Intellectual Property Review: Czech Republic

Forms of intellectual property protection

Numerous forms of intellectual property (IP) protection are available under Czech law. The Czech Republic has historically taken a pro-innovative approach to IP and is a party to most international treaties concerning this field, both directly and through its membership of the European Union. It is thus a party to or a member of the World Intellectual Property Organization (WIPO), the European Patent Convention (the multilateral treaty instituting the European Patent Organisation), the World Trade Organization's Agreement on Trade-Related Aspects of Intellectual Property Rights (known as TRIPS), the Paris Convention, the Patent Cooperation Treaty (PCT), the European Union Intellectual Property Office (EUIPO), the Madrid Convention and Protocol, the Lisbon Convention, the Berne Convention and many other treaties and organisations.

The interaction of the various formal and registered rights with Czech law on unfair competition is of particular interest, as unfair competition law can provide protection that is broader in scope or may extend the duration of protection of a formal right and generally fulfils the role of a catch-all rule against commercially undesirable conduct.

Czech law is a civil law system and thus the basis for legal rules must be grounded in statute (i.e., written law), and it is thus not possible for the courts to create law. Past court decisions interpreting legal provisions and applying these to new factual scenarios are, however, important as later departures from them should be justified. Court decisions are particularly important in the field of unfair competition law, where the courts have great freedom to decide what conduct is acceptable in trade and what is not. EU case law applies. Court decisions are often not reported, providing an advantage to practitioners who handle large volumes of cases.

Patents (utility patents)

Any technical innovation that is novel, the result of inventive activity and industrially applicable can obtain protection via a grant of a patent, provided that it is not excluded from protection. A patent with effect for the territory of the Czech Republic can be obtained via either the Czech Industrial Property Office (IPO) or the European Patent Office (EPO) (directly or through designation under the PCT regime), allowing the owner or a person the owner authorises (i.e., a licensee) to use the invention exclusively in the jurisdiction and thus to exclude unauthorised users from the market. Further details are provided below.

European patents must be validated within a specified time limit or they are deemed ab initio ineffective.

The duration of patent protection is 20 years from the date of the patent application being filed.

Patents can be enforced upon the publication of their grant through IP specialist senates of the courts. Preliminary injunctions (PIs) are readily available.

Supplementary protection certificates

In the case of pharmaceutical or plant protection products, the 20-year maximum term of protection of a patent can be extended by up to five years. The goal of the supplementary protection certificate (SPC) regime is to compensate patent owners for delays caused to the marketing of their product through the need to undergo often lengthy efficacy and safety examination, to provide at least 15 years of effective protection in practice.

Utility models

Technical solutions that are novel, extend beyond the scope of mere expert skill and are industrially applicable can be registered as utility models with the IPO, provided that they are not excluded from protection. Utility models notably cannot protect methods of manufacture or processes; product-by-process claims remain available.

Utility models are sometimes called 'small patents' and provide the benefit of rapid grant and thus enable rapid enforcement of the technology. The applications are not subject to substantive examination (which also makes them much cheaper to obtain) and often lead to grant within three to six months. Utility models can be branched off patent applications. A utility model can be enforced in court immediately upon its grant, including through a PI, thus allowing the owner or licensee to exclude others from the use of the protected technology often long before a patent would be granted.

The level of innovation required from a utility model should be lower than in the case of patents (although there is uncertainty as to the scope of this) and the novelty requirement is less strict; a utility model can be obtained even where a patent would not be granted.

The downside of the utility model right is the limited term of protection, which is set at a maximum of 10 years.

Trademarks

Any sign capable of distinguishing the products of one person from those of another is entitled to protection under Czech law, unless it is excluded from protection because of its nature.

Registered trademarks can be obtained as:

  1. national trademarks from the IPO;
  2. European Trademarks from EUIPO; or
  3. international trademarks from WIPO.

Registered trademarks must be capable of recordal in the relevant register. They are subject to registration fees and procedures, and they lapse if their duration is not formally extended. They entitle the owner or licensee to prohibit others from using them in a manner capable of causing confusion in the market. Their initial duration of 10 years can be repeatedly extended, potentially indefinitely.

Unregistered trademarks are protected under the law prohibiting unfair competition. A sign that has through use become characteristic of a person's goods or services is entitled to protection without any need for formal registration. However, this right to protection can lapse because of a short period of non-use, and its assignment may be difficult. Unregistered signs of more than negligible geographical effect can be used to oppose registration of trademarks.

The courts have been particularly sensitive to attempts at gaining the benefit of the unlimited duration provided by trademark protection for technical innovation. The Bullerjan cases are an example, where an attempt at trademark protection for a wood stove was sought after patent expiry.

Trade names

Czech law strictly protects the names of commercial entities, with the use of a similar trade name being forbidden to all. This protection is not limited to particular goods or services.

Design

Sometimes called design patents, national industrial designs and Community designs (i.e., aesthetic forms present in or on products) are granted protection by Czech law.

The IPO registers industrial designs if they are novel and have individual character. Their maximum term of protection is 25 years. The same applies for registered Community designs, which are registered with EUIPO.

Unregistered Community designs come into existence immediately upon their publication without any formal steps being necessary, and last for three years.

Unregistered designs can come into existence under Czech national law as well. If they become characteristic of the user's goods, the law prohibiting unfair competition will protect the design's user from imitation by others. The length of protection will vary from case to case.

Trade secrets

Trade secret protection applies to any information that has commercial value, is identifiable, is not readily known and is being kept secret through sufficient means. Trade secret protection can be relied on to protect technology or know-how that is not susceptible to reverse engineering.

Unfair competition

The Civil Code prohibits unfair competition, which is defined as 'conduct in commerce that is capable of harming competitors and is at odds with good morals in competition'. Any person acting in trade falling foul of this provision can be ordered to stop the infringing conduct and remedy the disruption caused on the market by its conduct. The law thus provides the courts with enormous discretion in determining whether conduct is within or outside the limits of good morals in competition matters. Over the years, the courts have created a number of classes of conduct that amounts to unfair competition, and some of these have now been codified in the Civil Code. These specific instances of undesirable conduct include 'misleading marking of goods or services', 'causing a likelihood of confusion' and 'freeriding'. The list is not exhaustive and the courts remain free to judge each case on its merits. The categories are not closed and the judges are free to create new ones.

Breaches of trade secrets are handled under the provisions relating to unfair competition.

Unfair competition law potentially grants protection to technical innovations even after their term of protection has expired; for example, slavish imitation is arguably never permitted, although the court always aims to balance the interest of the innovator and the public need to prevent the creation of undesirable monopolies.

Copyright and related rights

Czech law provides protection to author's rights. A literary, artistic or scientific work that is a unique result of its author's creative activity is protected once it is objectively expressed. The definition of a work is very broad. The scope, purpose or value of the work is not relevant. Computer programs and photographs can be protected even if they are merely original. Database protection is created as a sui generis right.

The author, who must always be a natural person, obtains moral and economic rights to the work and dealing with it. The economic rights expire 70 years after the death of the author, while some moral rights can survive indefinitely. Numerous statutory exemptions and licences exist.

Related rights include the rights of actors, singers and recording studios, publishers, and film production companies, among others.

Other IP rights

Czech law also allows for the protection of geographical indications or appellations of origin, topographies of semiconductor products, and plant varieties. These will not be addressed in this chapter. Below we focus on patent law and other areas of interest.

Recent developments

The entry into effect of the European Unitary Patent and the associated judicial system is being closely monitored. Although the Czech Republic signed the Unified Patent Court Agreement,2 it has not ratified the Agreement to date.

The City Court in Prague, which is the sole court with jurisdiction over industrial property matters, has recently undergone a generational change of judges serving on the industrial property and unfair competition panels (or senates). The newly appointed judges did not often deal with IP to a great extent in their past roles and the departure of seasoned judges has led to a change of practice as old settled issues are now being reopened, re-evaluated and resolved differently.

The courts have had their first chances to grapple with patent cases involving potentially fair, reasonable, and non-discriminatory terms (known as FRAND), and the enforcement of second and further medical use patents. So far, little guidance has been available, as the cases related to PIs, where legal interpretation is carried out in a preliminary manner and the court can depart from it in the full action on the merits. However, it is already evident that Czech courts may carve their own path, and one that differs from the approach taken by other jurisdictions; for example, in a case concerning a further medical use patent, a PI was not granted against a biosimilar that had entered the market with a full summary of product characteristics (there was no carve-out), as the applicant did not provide evidence of actual use of the biosimilar for the patented indication.

The relatively recent EU Directive on Trade Secrets, while not enlarging the scope of protection already provided by existing Czech law to trade secrets or know-how, created some interesting practical regimes for the protection of trade secrets in litigation (i.e., 'confidentiality clubs').

The recodification of the whole of the civil law (and repeal of the Commercial Code) that took place with the coming into effect of the Civil Code in 2014 failed to produce any significant changes in the field of IP in practice. The general rewording of the provisions relating to unfair competition has so far not been treated by the courts as a material departure from the previous legal regulation. Equally the new codification of the nature and rights and obligations arising from licences has brought little change.

In the field of utility models, a case is pending in which the key issue may be whether in practice the degree of innovation required differs between a utility model and a patent. The law and academic commentary insist on there being a difference; however, the IPO's argument is that there is no difference in practice – and it takes the 2006 German change of practice (i.e., that there is in fact no difference between these) as the inspiration for adopting this approach.

Obtaining protection

Protection of IP rights varies between the various rights (i.e., technical, aesthetic, identification of source or origin etc), and this was briefly described above, when the various available rights were discussed in Part I. Below, we focus on some particular fields of industry or rights regimes.

Patent protection for a technical invention can be obtained via the IPO or the EPO. An application can be filed with either of these offices directly, or a PCT application can result in the grant of a national or European patent. European patents have to be validated within six months. Novel, inventive (i.e., not obvious to the person skilled in the art) technological innovations that are industrially applicable can obtain patent protection, provided that they are not excluded from patent protection. The notable exclusions from patentability that may have industrial applicability are methods of treatment of humans and animals, and diagnostic methods, as well as plant varieties and animal breeds. The major exceptions are also inventions at odds with good morals or public order; this mainly relates to genetic alteration of humans and animals.

Excluded from patent protection are business methods and computer programs, although both can be protected if they are a part of a wider invention that has a technical aspect. Computer programs can also be protected under author's rights or copyright.

The prohibition on human treatment and diagnostics does not preclude a patent being granted for products and substances used for treatment or diagnosis. Patent protection for treatment of a particular condition is available repeatedly through the Swiss-type claim, seeking to protect the use of a substance for the treatment of a particular condition. Since 2011, European patents have been unable to rely on the Swiss-type claim formulation and must use a simplified wording.

Plant varieties are protected under their own sui generis regime. Modified plants and animals may under certain conditions be protected through a patent as well.

Biotechnological inventions are protectable and where incapable of description a sample may be deposited.

Enforcement of rights

i Possible venues for enforcement

Industrial property rights infringement disputes are exclusively decided by the City Court in Prague, as the only court with jurisdiction at first instance. Industrial property excludes copyright and unfair competition. The City Court is one of the regional courts (i.e., above the district courts but below the two high courts and the Supreme Court) and thus staffed by experienced judges. The Constitutional Court sits above these courts or, rather, outside the ordinary court system.

In industrial property matters the City Court in Prague decides in senates or panels composed of three IP specialist judges. The judges are legally trained and do not have technical backgrounds. Appeals go to the High Court in Prague, where panels of three IP specialist judges decide cases. Extraordinary appeals are directed to the Supreme Court and constitutional complaints directed to the Constitutional Court, where the judges do not specialise in IP. A preliminary reference may be made to the Court of Justice of the European Union by any of the courts if a question of EU law is unclear. A complaint may be lodged with the European Court of Human Rights as well.

Copyright, trade name and unfair competition disputes are at first instance decided by one of the eight regional courts. The location of the defendant is ordinarily determinative of which regional court has jurisdiction. The cases are heard by sole judges. Appeals go to the High Court in Prague or the High Court in Olomouc, depending on which court heard the matter at first instance. The Supreme Court, the Constitutional Court, the Court of Justice of the European Union or the European Court of Human Rights can also become involved.

It is possible to apply to the IPO for a determination whether a description of a product or process falls within the scope of protection of a patent or utility model. The decision can be appealed and subjected to two instances of judicial review. Such a decision is deemed very persuasive by the courts. The proceedings are, however, generally heard inter partes and thus cannot be undertaken without alerting the other side.

The IPO has jurisdiction over challenges to the validity of the registered rights; patents, SPCs, utility models, trademarks etc. The first instance decision of the IPO can be appealed as of right to the President of the IPO. The President decides based on advice from a panel of officers. The President's decision can be subjected to as-of-right judicial review, which is heard by the administrative division of the City Court in Prague. The appeal on a question of law, called cassation complaint, is heard by the Supreme Administrative Court. A constitutional complaint may be made to the Constitutional Court. The IPO cannot make a reference to the CJEU (see C-49/13), the courts can.

The validity of European rights, such as the European patent, the European trademark or the Community designs can (also) be challenged with the European offices administering those rights; EPO or EUIPO.

A challenge to the validity of an industrial right in the form of a declaration of non-infringement or invalidity could be directed to the City Court in Prague; however, so far the courts have refused to hear cases of this kind substantively, rejecting them for lack of urgent legal interest.

ii Requirements for jurisdiction and venue

The owner of the registered right can bring an action seeking protection from infringement of the right. A licensee can bring an infringement action if it authorised to do so under the licence or if it notifies the owner and the owner does not take action within 30 days. The court of jurisdiction is determined by the nature of the right and the location of the defendant or infringing act. Industrial property rights are strictly territorial and the right must have effect in the Czech Republic and the infringement must take place in the Czech Republic. In the case of regional rights, such as the EU trademark or Community design, the location of the defendant in the Czech Republic may suffice to grant jurisdiction.

While it is possible to argue in infringement proceedings that a right is invalid, in patent matters the courts have been reluctant to address validity; this is probably due to the fact that the judges are lawyers and do not have the necessary technical knowledge. The court can decide to disapply the right to the extent that it is held invalid. In utility model matters the court has to examine novelty and innovative level of the technical solution before deciding on the infringement in an action on merit, unless it decides to await the IPO decision on the matter. This does not apply in PI proceedings, where there is no time to visit the issue of validity of rights.

Validity of patent, utility models and any other right should therefore be challenged before the IPO, EPO or EUIPO. The infringement courts will often then wait for the decision before themselves deciding, although the courts can in most cases move ahead if they deem it best for the economical handling of the matter.

Stand-alone applications for a declaration of non-infringement are generally rejected for lack of urgent legal interest in determinations of this kind. The courts argue that any non-infringement or invalidity argumentation can be raised as a defence once infringement has begun.

While it is possible to apply to the IPO for a determination whether a description of a product or process falls within the scope of protection of a patent or utility model, the applicant has to prove a legal interest in the application and as a result has to identify the potential infringer thus causing the proceeding to proceed inter partes. Where the infringer applies, the right owner becomes a party. Where there are disputes about the nature of the product or process, any decision may be unusable in later litigation.

iii Obtaining relevant evidence of infringement and discovery

Strictly speaking the court obtains, admits and examines evidence based on the proposals of the parties. In practice, the parties must obtain most evidence themselves and the court provides assistance only where the party cannot obtain the evidence without its aid (e.g., the court orders third parties to produce documents or product samples).

Common law style discovery and inspection are not available under Czech law. The IP Enforcement Directive right to information does not assist, as the information only has to be provided after infringement has been established.

The rights holder can request that a piece of evidence is secured in a preliminary manner, if there is a threat of it not being obtainable later or obtainable only with great difficulty. In IP matters, the court can seize samples of infringing goods and related documents by way of a preliminary measure. This evidence would then be examined at the oral hearing and by the experts. If the preliminary seizure is made before proceedings on the merits have been commenced, the rights holder may be ordered to begin such proceedings.

Customs can be used to seize a product suspected of IP infringement, whether it is entering the market or already on the market, as a rights holder can register internal and external market watches and ask customs to inspect premises or monitor shipping routes. Seized product can then be used as evidence in legal proceedings. If the defendant does not agree to the product's voluntary destruction, the rights holder has to litigate.

iv Trial decision-maker

Industrial property infringement disputes are decided by legally trained judges, sitting in panels or senates of three. The same applies for appeals.

The courts rely on court experts to resolve technical issues of fact. The Ministry of Justice maintains a list of experts appointed in various technical fields. One such field is the field of industrial property. An expert in the field of industrial property is usually a retired patent office examiner or a patent attorney and is relied on by the court to interpret the claims of a patent or, rather, to answer the question of whether the alleged infringing product exhibits technical features such that it falls within the scope of protection of the patent claim. The experts can be approached privately or the court appoints them itself.

It is also possible to apply to the IPO for a determination whether a description of a product or process falls within the scope of protection of a patent or utility model. While a decision of this kind can be appealed and subject to two instances of judicial review, the final decision (or even the interim decision) is deemed to be very persuasive by the courts, as the determination is carried out by technically trained officers with daily experience in patent interpretation.

v Structure of the trial

Infringement and validity issues are usually bifurcated, with the infringement courts being very reluctant to address validity, especially in patent and utility model matters, generally relying on the EPO, IPO or EUIPO to resolve the issue.

The first instance infringement proceedings are begun by the filing of a mainly front-loaded claim in court. This can be preceded by a PI application – which is very useful as the court has to decide on the application within seven days and the PI, if confirmed on appeal, can last for the whole duration of the merit proceedings (i.e., two to five years in patent cases and one to three years in trademark cases).

The court checks the formalities of the claim and serves it on the defendant, including if the defendant is situated abroad, and usually orders the defendant to respond within 30 days. The response is sent to the plaintiff for a potential replication. The court then schedules an oral hearing in the matter. The first hearing is usually scheduled within three to nine months of the claim being filed. In simple matters, a decision can be made at the first hearing, and that is the goal in trademark matters, for example. In patent matters, more than one hearing can be expected, as the court is likely to examine available evidence and adjourn to commission an expert report. At the subsequent hearing, the expert will be heard and cross-examined and, in all likelihood, the decision made. The court can, however, schedule multiple further hearings if necessary. Each hearing is likely to last about two to three hours. The judgment can thus be expected within one to three years. The judgment is not enforceable if appealed. Appeals take one to two years.

Experts are relied on to address technical facts. The parties can approach experts directly and present their expert reports in court, including to challenge the court-appointed expert's report.

Witnesses are rarely called as the court prefers documentary evidence. However, affidavits and similar documents carry very little weight.

All evidence must be presented before the court decides to end evidence gathering, usually at the end of the first oral hearing, although it generally allows the sides 30 additional days to identify further evidence if this is requested – such evidence can be presented even later.

The burden of proof is on the plaintiff to prove infringement and, as a result, the defendant can be relatively passive. Where the defendant claims something in defence, it has to prove its claim is true. For products obtained through a patented process, the burden may shift to the defendant to prove that the process used to obtain a product that appears the same as a product obtained by a process differs from the patented process.

vi Infringement

Czech patent claim interpretation practice relies primarily on a literal interpretation of the claims. The drawings and description are used to interpret the claims. If a feature of the patent claim is missing, the patent owner can aim to prove that the feature is not necessary or that a technically equivalent feature is present. There is limited case law on claim interpretation, but the IPO practice has largely been adopted.

There is limited case law on the theory of equivalents. Although it is clear that the theory does apply, the precise conditions under which this is the case have not been resolved. Nonetheless, it is accepted that the technical equivalent had to have been known at the time of priority, and it must not alter the functioning of the invention as a whole.

There is no clear position on whether the prosecution file can be used to interpret the claims. The law states that the claims, drawings and description are to be used to interpret the claims, which appears to support the file wrapper estoppel position; however, it is common to present letters to examiners disclaiming certain scope of an invention, where that scope is then being enforced in court. The courts have so far not taken up a position on the issue.

Somewhat unusually perhaps, experts are used to interpret patent claims. While strictly speaking patent claim interpretation is a legal issue, because it relates to technical matters, the courts rely on experts in the field of industrial property (previously 'patents and inventions') to interpret the claims. The court is not bound by the expert's opinion but usually only disagrees if it has conflicting expert opinions before it.

vii Defences

A defendant can attempt to pre-empt an infringement action; for example, by challenging the right before the EPO, IPO or EUIPO, or by seeking a declaration of non-infringement from the IPO in the case of patents or utility models. Seeking a non-infringement declaratory judgment is not likely to succeed, as the courts refuse to entertain them for lack of urgent legal need. Defending against a PI can involve submitting defensive briefs and monitoring the courts aiming to submit a substantive defence once a PI application is filed.

Once infringement proceedings on the merits are begun, arguing lack of validity of a patent (due to a lack of novelty or inventive step, or obviousness) is not a strong defence as the courts aim to avoid technical validity issues. However, the court may stay infringement proceedings where the IPO or EPO is examining the validity of a patent. The court could theoretically also decide to disapply a patent as far as it is deemed not valid by the court.

Having a licence provides a defence against an infringement claim; however, as all patent licences should be in writing, this rarely occurs.

Compulsory licences are available under Czech law; however, these are very rare.

A defendant can claim that the right has been exhausted; this occurs where the owner authorises the first sale in the Czech Republic or the European Economic Area. Under normal circumstances, subsequent sales cannot be opposed by the owner.

Delaying bringing an action for infringement has no negative effect on the chances of success of the infringement claim, provided that the limitation periods are not exceeded. Injunctions are available as of right and are not discretionary – although the court has discretion on whether to order destruction of infringing goods or not.

viii Time to first-level decision

The plaintiff can expect the first instance judgment in patent matters to be rendered within 15 to 36 months. The appeal then takes 12 to 24 months. In simpler matters, such as trademarks, the judgment can be obtained in nine to 24 months and the appeal resolved in 12 to 24 months.

As a result, seeking a PI has to be carefully considered, given that the court has to rule on a PI within seven days, the appeal is decided within three to six months and the PI can last for the duration of the full proceedings.

ix Remedies

PIs are readily available under Czech law. The PI applicant has to prove that it has a valid right, that this is likely to have been infringed and that there is an urgent need to adjust the parties' position. The formal validity of a right is decisive. Infringement of the right has to be shown to be likely, with the benefit of the doubt generally going to the patent owner. The urgent need requires the PI applicant to move relatively quickly (i.e., within months of the infringing conduct beginning), and the harm being caused to the applicant must be sufficiently significant – although in IP cases this is generally presumed. The requested PI order must be proportionate to the harm being caused, and the order reversible (e.g., destruction of goods cannot be obtained). Since a PI is enforceable once served on the defendant by the court, this allows the rights holder to protect its market pending full litigation.

In the action on merit the rights holder can seek that:

  1. the infringing conduct stops (e.g., in patent matters, the product is not made, offered, used, disposed of, stored, imported or otherwise dealt with);
  2. the infringing state of affairs is remedied (e.g., the product is withdrawn from the market, and is destroyed, and an apology is made at the expense of the defendant);
  3. the damage caused is compensated (including lost profit);
  4. unjustified enrichment of the infringer is surrendered;
  5. reasonable compensation for immaterial harm is paid by the defendant;
  6. the court judgment is published at the expense of the defendant;
  7. information about the infringement is provided by the defendant; and
  8. it is paid costs (i.e., actual reasonable expenses incurred in the proceedings and legal expenses at statutory levels – usually approximately €1,000 per instance).

Damages can either be claimed at the level at which damage or losses were in fact suffered (and precisely proven and calculated) or a lump sum can be sought amounting to at least double the value of the hypothetical licence fee that would have authorised the otherwise infringing conduct.

Injunctions are awarded as of right.

Judgments cannot have extraterritorial effect, unless expressly provided for (e.g., Community designs, EU trademarks).

x Appellate review

First instance decisions can be subject to appeal at the High Court in Prague in industrial property matters. The appeal suspends the effect of the decision (this does not apply to PI orders). While the appeal court reviews issues of both law and fact, new evidence can only be presented on appeal in very limited circumstances. In PI proceedings, no new evidence is admissible.

The High Court in Prague sits in panels or senates of three IP specialist judges, who are all lawyers. The appeal proceedings usually involve the appeal itself, which has to be filed within 15 days of receipt of the written decision of the first instance court, a response to the appeal, and an unlimited amount of further written submissions, although usually only one or two rounds of exchanges take place. The High Court can then be expected to decide the matter at the end of the first hearing in the matter; in rare cases, the court adjourns for one week for the sole purpose of issuing its decision at the next hearing. The oral appeal hearing usually lasts two to three hours.

An extraordinary appeal to the Supreme Court may become available in actions on the merits. This has to be filed within two months of the service of the appellate written decision, and the review is restricted to issues of law.

A constitutional complaint to the Constitutional Court may become available throughout the course of the PI or action on the merits proceedings. Court of Justice of the European Union references can be made. European Court of Human Rights complaints may be made.

xi Alternatives to litigation

As an alternative to litigation, the parties may negotiate or resort to mediation or arbitration, although mediation and arbitration are rare in IP cases. The Arbitration Court attached to the Economic Chamber of the Czech Republic and the Agricultural Chamber of the Czech Republic is a long-standing arbitration body with several IP specialist arbitrators on its list and a solid reputation. It as acted as a uniform domain-name dispute-resolution policy venue for the .cz, .eu, .com and many other country code top-level domains and generic top-level domains.

As noted, a party may apply to the IPO for a determination whether a described product or process falls within the scope of infringement of a patent or utility model. As this issues resolves the issue of infringement, the parties may decide to refrain from litigation before the courts, and litigate the issue before the IPO.

A patent cancellation application or a utility model striking-off action can also be begun before the IPO, opposition proceedings can be begun before the EPO, or trademark revocation before the IPO or EUIPO whereby the validity of the right is put in dispute – and the parties may decide to resort to court litigation while the validity challenges are pending.

Trends and outlook

Czech IP law is expected to continue its gradual development, for the most part mirroring the IP law developments of its European neighbours.

The main area to watch is the Unified Patent Court, with respect to which the Czech Republic may opt to ratify the Agreement.

Footnotes

1 Petr Kusý is an attorney-at-law at Cermák a spol.

2 Agreement on a Unified Patent Court (2013/C 175/01).

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