INTRODUCTION Contributed by: Andreas von Falck, Hogan Lovells International LLP
France to assert literal infringement in certain cases. In the pharmaceutical sector, 2024 tended to confirm a recent trend towards a more gener- ous position of the French courts regarding the validity of SPCs. The French Supreme Court confirmed an appeal ruling which recognised the validity of an SPC covering a monoclonal anti- body which was not specifically characterised in the basic patent (and was covered by a subse- quent patent), notably holding that the discovery of the antibody did not involve an independent inventive step with respect to the basic patent (Cass. Com. 31 January 2024, case 22-18.374). In another case, the Paris Court of Appeal con- firmed a preliminary injunction ordered on the ground of an SPC covering the combination of two compounds, after ruling that the validity challenges raised in defence were not serious (Paris Court of appeal, 12 January 2024, docket 22/16673). Finally, on the procedural side, French courts have begun to implement a mechanism recently created by a reform of French law, whereby the parties are invited and incentivised to agree on the complete procedural schedule on an ami- cable basis from the start of the procedure. This may streamline the course of French patent pro- ceedings and eventually shorten their average In Germany, the market for patent litigation seemed to converge further in 2024 and it is expected that the number of patent cases filed in German national courts will be seen to have consolidated at the relatively low levels of 2023 (less than 700 cases altogether as per JUVE Pat- ent). However, the Munich courts in particular seem to be resisting this trend, offering extreme- duration. Germany
ly short litigation timelines that beat even the UPC with its “one year to trial” schedule. A lot of the perceived benefits for plaintiffs available in Germany through the bifurcation of infringe- ment and validity (with validity being on a much slower track to trial resulting in the well-known “injunction gap”) were reduced, if not removed, by the 2021 reform, obliging the German Federal Patent Court to issue so called preliminary opin- ions on validity within six months from service of a nullity action on the patentee. However, the Munich courts currently offer timelines to trial in the region of six to nine months, which is often faster than the time it takes that Federal Patent Court to issue its preliminary opinion. While that makes life arguably very difficult for defendants, the new patentee-friendly offering by the Munich courts means in practice that much national German patent litigation is now started before the patent courts in Munich. On the substantive law side, German courts con- tinue to be a “safe choice” for non-practicing entities (NPEs). There were, once again, a large number of decisions in 2024 that held in favour of NPEs and which ultimately led to settlements. Most global patent litigation campaigns of NPEs, particularly in the field of technology and tele- coms, include infringement actions in Germany. The speed of the German courts combined with the reluctance to exercise any proportionality assessments when considering injunctive relief keeps Germany firmly on the map for plaintiffs. In an inevitable reflection of the rise of the UPC and the importance of the German local divi- sions in Dusseldorf, Munich, Mannheim and Hamburg, there were fewer important decisions from the German national courts in 2024. However, the Federal Court of Justice issued a landmark decision concerning the patentabil-
10
CHAMBERS.COM
Powered by FlippingBook