European Patent Law

European Patent Law

Towards a Uniform Interpretation

Stefan Luginbuehl

In his detailed study, Stefan Luginbuehl critically examines the latest efforts to establish a common European and EU patent litigation system and suggests possible alternatives to such a system.

Chapter 2: Forum Shopping Related to Patent Litigation in Europe

Stefan Luginbuehl

Subjects: law - academic, comparative law, european law, intellectual property law


INTRODUCTION Forum shopping may generally be defined as legitimately choosing a jurisdiction from amongst available legal systems1. The author does not share the view of some commentators on the doctrine2 that choosing a court from a clearly unavailable jurisdiction is also part of forum shopping. One may only shop for what is available for sale. Forum shopping at the international level presupposes that, based on international or national law, at least two states, or two courts located in different states, have international or territorial jurisdiction. It is practised very extensively in the global business world with cross-border cases. The actual circumstances for forum shopping lie in the lack of uniformity throughout the legal systems3. In Europe – and in contrast, for example, to the US4 – forum shopping is typically practised at the international level on the basis of the existing jurisdiction agreements. However, as mentioned above5, in patent litigation, forum shopping is also practised at the national level alone. The reason for this lies in the fact that, unlike in other fields of law, patent cases are rare and quality, along with the experience of the courts, varies greatly. In several European states forum shopping is in fact encouraged by liberal jurisdictional regulations6. In Switzerland, for example, it has been possible since 1 July 2008 for the plaintiff in an international dispute to choose from no fewer than four jurisdictions in the case of a patent infringement: 1 2 3 4 5 6 Cf. ILA, Leuven/London principles, N 1; Kropholler, FS,...

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