The Patent Litigation Law Review: Editor's Preface

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.

The extraordinary events of the last several months have not left patent litigation unscathed, and it will be interesting to see how the changes that the pandemic has wrought, such as remotely conducted hearings, survive the much-hoped-for return to normality. The pandemic was also seen in its early days by some commentators as an excuse to renew pressure to expand the scope of the defences to patent infringement. Although some legislatures have succumbed to such pressure, these measures contribute nothing to the search for the new and improved treatments, which remains the real priority. Instead, this search only serves to emphasise the need for stronger and better focused incentive structures, in which patent law has a role to play.

On a global basis, courts in multiple jurisdictions continue to be involved in controversies over standard-essential patents, one emerging aspect of which is the potential challenge that these present to the territorial nature of patents, as exemplified by the judgment of the UK Supreme Court in August 2020 upholding the imposition by the English courts of a global licence, on terms that they have assessed, as the price for exploiting standard-essential patents in the UK. The past year has also seen such controversies expand from mobile telephony into the automotive sector. In the United States, the most prominent controversy remains the question of excluded subject matter, as to which there remains a dearth of clear judicial guidance. In Europe, one apparent trend has been towards greater flexibility as to injunctive relief, particularly in medicine – by, for example, in the UK, tailored injunctions, or, in Germany, expedients such as compulsory licences. Although, in Germany, there has also been also talk of legislation to address the issue.

Also as to Europe, previous editions of this work have, perhaps unwisely, tempted fate by including a chapter on the anticipated entry into force of the long-heralded Unified Patent Court Agreement. We have adopted a different approach in this edition, waiting for the dust to settle after two major developments earlier in 2020. The first of these was the decision of the Federal German Constitutional Court upholding, albeit on narrow procedural grounds, a challenge to the consistency of the Agreement with the German Constitution. The second was the decision of the UK, which withdrew from the EU on 31 January 2020, to withdraw its ratification of the Agreement. This raises the prospect, even if the German ruling is susceptible, as the German government currently hopes, of a legislative solution, of having to amend the Agreement before it can enter into force to take account of the UK withdrawal.

Trevor Cook
Wilmer Cutler Pickering Hale and Dorr LLP
New York
October 2020

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