Comparing Patent Litigation Across Europe: A First Look

Although patent litigation has become increasingly global, with litigants earning billion-dollar verdicts and seeking judgments in many different jurisdictions around the world, scholarship has been almost completely silent on how such litigation develops outside the United States. This void in understanding is particularly glaring in Europe, where U.S. and other litigants are increasingly drawn, and to which policy makers interested in harmonizing the U.S. patent system look in vain for answers. Courts, litigants, commentators and policy makers speculate about how litigation and judicial outcomes differ, but have no factual basis for comparing or understanding what really transpires. With a view to settling this uncertainty and allowing for the emergence of a more robust body of scholarship, this Article sets forth the results of an empirical study of a database including nearly 9,000 patent suits from seven of the largest and most judicially-active countries in the European Union during 2000 to 2010. In the process, it shows that the incidence of litigation and the bases of judicial outcomes diverge radically across the different countries and varying patented technologies in Europe. Accordingly, the Article for the first time provides an empirically grounded, factual basis for examining stubborn questions relevant to those needing clarity about the legal environment in Europe, and to comparatively study the United States’ system. The results unveiled in this Article are profound, bringing clarity to a legal environment that has been heretofore shrouded in shadow. The results shows that the frequency of patents reaching a judgment in litigation varies widely across European countries, in ways that belie the simple differences associated with the quantity of domestic stocks of enforceable patents. By demonstrating that disputes are much more frequent in some countries (e.g. the Netherlands and France) compared to others, the Article uncovers that practitioners’ estimates – the sole previous source – are incorrect. In showing how litigation varies widely across technologies, this Article provides critical insights on the likelihood of different kinds of patents reaching a judgment in diverse European courts. It also offers surprising evidence on how litigants’ raising patent validity and infringement claims differs from one European court to another, and that outcomes too are starkly different. The main policy implications of the Article are derived from the patterns reported concerning patent litigation across technologies and countries. The findings highlight both the fragmentation and variation within the European patent system, and the fundamentally different dynamics that will continue to shape patent enforcement across technology sectors and industries. The patterns also underline the variation in predictability, and differences in legal certainty, that innovators, patent holders, and their technology competitors experience in the fragmented European system. These cross-country differences highlight institutional variation among the jurisdictions, which in turn drives the costs and incentives to use the courts, helping to provide critical evidence as Europe implements a move to a continent-wide Unitary Patent and Unitary Patent Court in 2015. Moreover, the Article’s teaching is relevant to current U.S. policy debates about reforms intended to address perceived problems in patent litigation, since several of the changes proposed in Congress closely resemble rules already in place in the several European jurisdictions, about which this Article presents important trends and outcomes.