European Patent Law
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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.
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Chapter 3: Conclusion in Regard to the Unification of Interpretation and Avoiding Multiple Litigation by Way of Specialised National Courts and Forum Shopping

Stefan Luginbuehl


The overview made it clear that forum shopping is not bad per se1 or a ‘deadly sin’, as it was obviously also considered to be2. The effectiveness and legal certainty of the protection conferred by the European patent can be increased at the national level by allowing extensive forum shopping and thereby promoting the creation of specialised courts, and especially specialised judges. Even then, however, there will always be courts with no or hardly any experience in patent law or patent litigation if too many courts are designated to have jurisdiction in relation to the number of cases that arise. Furthermore, forum shopping has a great variety of undesired side-effects, particularly when substantive and procedural law diverges within the courts having jurisdiction3. Most of these problems could be avoided at the national level, for example in England and Wales, Sweden and in the Netherlands, with one or two courts having territorial jurisdiction. The number of courts having jurisdiction must therefore be healthy in relation to the number of cases arising, to ensure good quality. Due to the limited number of patent cases in Europe, there is consequently a clear need for a concentration at the national level. One should also keep in mind, however, that even if 1 Also cf. Ferrari, 374; Kur, Sackgasse, 911; Wadlow, N 5–149; Pagenberg, First instance, 489; Schade, Regelung, 105; Lupoi, 153. 2 Cf. Bell, Forum Shopping, N 2.05. 3 Cf. also the indication of one delegation in the second session of the WIPO...

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