Patent Litigation in Europe
Whatever the merits of the European Union and the European Patent Convention in other matters, they have done little to help rationalize European Patent litigation. At present all
questions of infringement and, after the nine month patent opposition term provided for underthe European Patent Convention has run, of validity are exclusively matters for the national courts. However, it should be noted that in general European countries have amended their definition of validity to agree with that of the European Patent Convention so that patents granted under national law and by the European Patent Office should be judged by the same standard. Additionally the European Patent Convention does contain, however, one provision which was intended to provide some uniformity in this area. The provision concerns a definition of how a claim in a European patent is to be interpreted. Prior to the coming into effect of the European Patent Convention, the British and Germans maintained opposing views on this. As originally agreed to, the European Patent Convention had a very simple definition of what interpretation the claim should be. Thus, Article 69 read:

The extent of protection conferred by a European patent or a European patent application shall be determined by the terms of the claims. Nevertheless, the description and drawings shall be used to interpret the claims.



At the diplomatic conference that gave rise to the final form of the European Convention, it was found that this simple wording was interpreted in entirely different ways by the British and the Germans. Rather than reword the article, which had been already incorporated into the draft text, a protocol for explaining what this article meant was agreed upon which reads as follows:
Article 69 should not be interpreted in the sense that the extent of the protection conferred by a European patent is to be understood as that defined by the strict, literal meaning of the wording used in the claims, the description and drawings being employed only for the purpose of resolving the ambiguity found in the claims. Neither should it be interpreted in the sense that the claims serve only as a guideline and that the actual protection conferred may extend to what, from a consideration of the description and drawings by a person skilled in the art, the patentee has contemplated. On the contrary, it is to be interpreted as defining a position between these extremes which combines a fair protection for the patentee with a reasonable degree of certainty for third parties.
As a practical matter, the protocol does not yet seem to have helped very much. The celebrated example of this is in respect of the European patent relating to alleged infringement by Remington of Epilady's patent for a hair remover for use on ladies' legs. The British and German courts still came to opposite conclusions as to whether or not a claim calling for a rotating helical spring (which plucked hairs from the legs at one point in its rotation and deposited them at another point when the coils of the spring separated) was infringed by a rotating rubber bar with slits in it, which performed the same function.

In addition to the European Patent Convention and the possible Community Patent Convention, two other European treaties must be considered before we look at the specifics of patent litigation in the four major European countries. The first is the Treaty of Rome, the basic constitutional document of much of the European Union, itself. When considering the question of patent infringement in any EEC member country, one must always bear in mind what have come to be known, in England at least, as "Euro defenses". Article 2 of the Treaty of Rome that set up the EEC declares that a primary objective of the Treaty is the establishment of a true common market among member states. In July of 1987 the so-called "Single Act" came into effect to try to expedite the growth of the EEC's international market and to lower barriers to the free flow of goods between member states
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