What is genuinely European in European Patent Law? Is there a common set of rules or understandings related to topics such as indirect infringement, equivalents, exhaustion, damages and joint ownership? To say that answering these questions in one book is challenging would be grossly underestimating the task.
Paul England (with the assistance of Sara Burghart [Munich], Judith Krens [Amsterdam] and François Pochart [Paris]) took up the challenge and certainly has met, if not exceeded, the high expectations created by the book's title. "A Practitioner's Guide to European Patent Law" provides at least tentative answers to the above questions (and a few more as well) in only 350-odd pages, and in a manner that can be easily digested by practitioners.
The book's approach consists of summarizing national and EPO case law for each of the 14 (plus one, see below) topics and identifying the common principles. To make the task manageable, the book limits the analysis to four (arguably the most influential) European jurisdictions: England and Wales, France, Germany and the Netherlands.
As suggested by the book's subheading-- "For National Practice and the Unified Patent Court", the author's aim is two-fold. The motivation for the work (as explained in the author's Explanatory Note) came from the feeling that the UPC is "close to completion". However, irrespective of the UPC project's setbacks [see here and here for the latest developments and the current status of the project], the book's comparative approach will be a valuable tool in national courts as well.
Each chapter of the book is focused on one topic: (1) The Skilled Person and Common General Knowledge, (2) Scope of Protection of Patent Claims [including the doctrine of equivalents and prosecution file estoppel], (3) Direct Infringement, (4) Indirect Infringement, (5) Defences [including Bolar-type defences, exhaustion and FRAND objections], (6) Remedies, (7) Patentability and Industrial Application, (8) Novelty, (9) Inventive Step, (10) Sufficiency, (11) Plausibility, (12) SPCs, (13) Patent Ownership, Dealings and Employee Inventors and (14) Cross-border Actions in Europe. The final chapter (15) relates to the impact of Brexit [spoiler alert: we still do not really know what will happen].
Each topic is introduced by references to provisions of the Community Patent Convention (CPC) (a European project that was proposed and failed in 1973 and again in 1989) and/or the EPC. This topic-by-topic (instead of jurisdiction-by-jurisdiction) approach makes it an easy-to-use tool for comparative law arguments [especially useful in the courtrooms of smaller jurisdictions that lack detailed case law on each issue of substantive patent law]. All in all, this attempt to synthetize a form of ius comune of European Patent Law will no doubt be a useful reference to litigators, patent attorneys and in-house counsels throughout Europe.
Published: 2019
Format: Hardback
Extent: 472 pages (including appendices and index)
ISBN 9781509928606 (hardback) / ISBN 9781509928620 (Epub)
Available here (hardback GBP 110; eBook GBP 106.92)
Book Review: A Practitioner's Guide to European Patent Law by Paul England
Reviewed by Peter Ling
on
Friday, January 10, 2020
Rating:
Reviewed by Peter Ling
on
Friday, January 10, 2020
Rating:
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