SAUDI ARABIA Law and Practice Contributed by: Saud Alromi, Mostafa Ihab, Mohamed Ramadan and Saleh Albadry, Mohammed AlDhabaan & Partners Eversheds Sutherland
1.9 Declaratory Relief Saudi Arabian courts are willing to grant declaratory relief. Declaratory relief can be sought to clarify the legal rights and obligations of the parties without nec ‑ essarily seeking coercive enforcement. Declaratory Relief Requirements To obtain declaratory relief, the following requirements must be met: • existence of a legal dispute – there must be a genuine legal dispute between the parties that requires clarification; • legal interest – the party seeking declaratory relief must have a legitimate legal interest in obtaining the declaration; and • specificity – the request for declaratory relief must be specific and clearly define the legal rights or obligations in question. Types of Declaratory Relief Available in Life Sciences Patent Proceedings In life sciences patent proceedings, the types of declaratory relief that may be available include: • declarations of non-infringement – a declara ‑ tion that a particular product or process does not infringe on the patent in question; and • validity declarations – a declaration regarding the validity of a patent. Parties’ Burden The party seeking the declaration must demonstrate: • direct and personal interest – the party must have a direct and personal interest in the outcome of the declaration; and • potential impact – the declaration must have a potential impact on the legal rights or obligations of the party seeking relief. 1.10 Doctrine of Equivalents The Patent Law implicitly supports the application of the doctrine of equivalents (DoE) by allowing for the protection of the essential elements of a patented invention. This doctrine allows for a finding of infringe ‑ ment even when the accused product or process does
not literally infringe the express terms of a patent claim, provided that the differences are insubstantial. The relevant legal test for determining equivalence in Saudi Arabia involves assessing whether the accused product or process performs substantially the same function in substantially the same way to achieve sub ‑ stantially the same result as the patented invention. This is similar to the function-way-result test used in other jurisdictions. 1.11 Clearing the Way In Saudi Arabia, there is no legal obligation to “clear the way” ahead of a new product launch. However, it is a prudent practice for companies to conduct thor ‑ ough due diligence to ensure that their new products do not infringe on existing patents or other intellectual property rights. This practice helps to mitigate the risk of legal disputes and potential infringement claims. 1.12 Experts Frequency It is common for Saudi Arabian courts to use evidence from experts to determine issues of infringement and validity in patent cases. Expert evidence is crucial in providing technical insights that the court may not possess. Forms Experts typically submit detailed written reports out ‑ lining their findings and opinions. Experts also often prepare reply reports to address points raised by either party. Additionally, experts may be called to testify in court and answer questions raised by the court or either party. Significance Expert evidence is highly significant in the decision- making process, especially in complex technical cases. Court-Appointed Experts The court appointing the expert will specify the time limit for the expert to prepare its report while allowing both parties to submit their comments, which is then followed by a final version of the report. After filing the final version of the report, the court can ask the expert to submit oral testimony or address any other
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