Tuesday, 17 July 2012

European patent owners’ scope for procedural action under Regulation (EC) 44/2001 strengthened


We have learned from our good friend Aurelio López-Tarruella that in a judgment given on 12 July 2012, in reply to a request for a preliminary ruling submitted by the Dutch courts within the framework of an action for infringement of a European patent by various parties (Case C-616/10), the European Court of Justice has clarified the  scope of articles 6.1, 22.4 and 31 of Regulation No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.


Two aspects of the judgment warrant special mention:

First, the ECJ allows that the special rule of jurisdiction laid down in article 6.1 of Regulation No. 44/2001 may prevail over the general rule based on the defendant’s domicile. For the ECJ the fact that actions for infringement of a European patent should, according to article 64 of the EPC, be dealt with by national law does not prevent the national court from deeming the different claims brought before it to be connected and thus permitting article 6.1 of the Regulation to kick in.

Second, the ECJ confirms that in the context of a European patent infringement action where the defendants have argued, by way of defence against the award of interim relief, that the patent is invalid, article 22.4 of Regulation No. 44/2001 (relating to jurisdiction as to the substance) shall not preclude the application of article 31 of that same Regulation (relating to jurisdiction over provisional or protective measures). The court states that the two provisions refer to different situations and have separate fields of application. Even so, the ECJ allows that the court seised of the application for interim measures may refuse such relief if it considers that there is a reasonable possibility of the patent ultimately being declared invalid by the competent court. 



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  1. An extension under Rule 134 applies to all periods under the EPC (see E-VIII, 1.1), including, in particular:


    the time limits for the filing of submissions, e.g. replies to EPO communications;
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