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Best Practices: Surprises for US litigators coming to Germany/Europe

Best Practices: Surprises for US litigators coming to Germany/Europe. No discovery, at least no discovery in US style. Preliminary injunctions are possible, even ex parte. Nothing comparable to ITC actions. There is no database for past or pending cases.

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Best Practices: Surprises for US litigators coming to Germany/Europe

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  1. Best Practices: Surprises for US litigators coming to Germany/Europe No discovery, at least no discovery in US style. Preliminary injunctions are possible, even ex parte. Nothing comparable to ITC actions. There is no database for past or pending cases. Damages are comparably low, no punitive damages. Costs of litigation are low. Litigation is country by country, even in case of a European Patent. There is forum shopping, but 70 % of European patent litigation is in Germany. Viering, Jentschura & Partner Munich • Düsseldorf • Dresden • Singapore • Taiwan

  2. Strategic issues for the plaintiff Do your forum shopping within Europe, but also within the individual country. Get at least two samples of the infringing product from the German market and document it. Be aware of strict time limits for a preliminary injunction. Prepare full evidence that each feature of the patent claim is used in the infringement. Accept that expert opinions are rare and – if provided by the parties – not taken as neutral. Be ready to place a deposit (usually more than 70.000 EUR) for reimbursable attorney and court fees of the defendant. Consider customs seizures in addition. Viering, Jentschura & Partner Munich • Düsseldorf • Dresden • Singapore • Taiwan

  3. Strategic issues for the defendant Consider to timely file a torpedo (suit for a negative declaratory judgment) in another EU country if it is the same patent. Consider to timely file protective letters to possibly prevent an ex parte preliminary injunction. Be aware that the infringement court (in general) will not deal with validity issues. Be aware that the winning plaintiff can enforce a first instance judgment (against security). Know that using the same name / article number for a design around product is patent infringement. Inform the managing director of an Ltd./Inc./Corp. that he could be sued also in person. Loser pays court and attorney fees of the winner, possibly in infringement and nullity proceedings. Viering, Jentschura & PartnerMunich • Düsseldorf • Dresden • Singapore • Taiwan

  4. The new Unitary Patent Court in Europe A “political thing” and a completely new litigation system for 25 of the 27 EU countries (except Spain and Italy). One judgment is valid for all participating states. A completely new court with three main divisions (Paris, London, Munich) and many local courts. Competent also for existing European Patents, unless the patentee “opts out”. Bifurcation of infringement and validity is at the discretion of the judge. No costs known so far. Coming into effect: Not 100% sure, theoretically in 2014, probably not before 2015. Viering, Jentschura & PartnerMunich • Düsseldorf • Dresden • Singapore • Taiwan

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